CROSSROADS

The Macedonian Foreign Policy Journal

the COunCil Of euROpe & the beginning Of A new eRA
Interview with Antonio MILOSOSKI, Ahmet DAVUTOĞLU
Viviane reding, Maud de Boer-Buquicchio, Samuel ŽBogar, Jean-Marie heydT, Terry daViS, luca VolonTÈ, Marija PeJČinoViĆ BuriĆ, caroline raVaud, darko angeloV, ewan King/Sanah SheiKh & chris reed, Mark ThoMPSon

human dignit y

May-November 2010

Democracy, Political Reforms & Civil Society

Macedonian chairManShiP oPenS new PerSPecTiVeS Sanja ZograFSKa-KrSTeSKa Thomas haMMarBerg, Petter F. wille, Françoise TulKenS Mirjana laZaroVa TraJKoVSKa, gjorgi SlaMKoV, Jana loZanoSKa Macedonia – ProMoTer oF The euroPean ValueS and PrinciPleS
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Macedonian Chairmanship (May-November 2010) Human Rights & Legal Affairs

Vol. II, No. 3

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CROSSROADS

The Macedonian Foreign Policy Journal

May-November 2010, Vol. II, No. 3

Founded by the Ministry of Foreign Affairs of the Republic of Macedonia. Dame Gruev 6, 1000 Skopje, Republic of Macedonia www.mfa.gov.mk Previous Editors-in-Chief: Pajo Avirovik, December 2006-April 2008; Zvonimir Popovik, May 2008-December 2009

Editor-in-Chief Vladimir EfrEmoVski Editorial Board: Lina ognEnoVa V Va Zuko riZVanski ZV ZVanski shaban Jashari aleksandar TraJ koski Tra Edvard miTEVski maciej kacZorowski Elena gEorgiEVska Eli BoJadJ iEska risToVski ad adJ Advisers: Vasko naUmoVski, Ph.d. darko angELoV, ma Ljuben TEVdoVski, ma Contributors: Elena BodEVa EV EVa sanja Zografska-krsTEska Photo: dragan TodoroVski Published by: macedonian information centre (mic) dragan anTonoV, Director n.n. Borce 73, 1000 skopje republic of macedonia

www.micnews.com.mk

CROSSROADS
The Macedonian Foreign Policy Journal

Skopje, May-November 2010

Vol. II, No.3

Contents

Interview with Antonio MILOSOSKI Macedonia Proved Its Capacity to Chair Major European and International Organizations ........................................................................................5 Ahmet DAVUTOĞLU Turkish Chairmanship With the Council of Europe Committee of Ministers: Perspectives and Vision ......................................................................................................9

Democracy, Political Reforms & Civil Society
Viviane REDING The EU and the Council of Europe: Towards Greater Collaboration and Partnership ......11 Maud de BOER-BUqUIcchIO Council of Europe Must Rise to the Challenges of a Multicultural Europe ......................17 Samuel ŽBOGAR Slovenia and the Council of Europe in 2009: A View from the Inside ..............................21 Jean-Marie hEYDT “Without Organised Civil Society, Democracy Is Nothing More Than Technocracy!” .....33 Terry DAVIS The Importance of the Council of Europe ........................................................................39 Luca VOLONTÈ The Role of Parliamentary Assembly of the Council of Europe ........................................47 Marija PEJČINOVIĆ BURIĆ Council of Europe as a Promoter of European Integration: Case Study: Croatia .............51 caroline RAVAUD The Role of the Council of Europe in Promoting Democracy, Rule of Law and Respect for Human Rights: Case Study: Bosnia and Herzegovina .............................59 Darko ANGELOV Lessons (to Be) Learned: The Council of Europe and the Road Ahead .............................77

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Ewan KING, Sanah ShEIKh and chris REED Religious Dimensions of Inter-Cultural Dialogue and the Promotion of Social Cohesion in Europe ...........................................................................................85 Mark ThOMPSON A Promise Unfulfilled ......................................................................................................97

Macedonian Chairmanship (May-November 2010)
Sanja ZOGRAFSKA-KRSTESKA Macedonian Chairmanship Opens New Perspectives .....................................................103

Human Rights & Legal Affairs
Thomas hAMMARBERG “Human Rights Principles Should Underpin European Democracies” ..........................109 Petter F. WILLE The Council of Europe`s Role in the Promotion and Safeguarding of Human Rights Throughout Europe ...........................................................................115 Françoise TULKENS A Typology of the Pilot-Judgment Procedure .................................................................125 Mirjana LAZAROVA TRAJKOVSKA Strengthening Subsidiarity by Integrating the Court’s Case-Law: The Role of the Constitutional Court and Constitutional Right to Appeal ....................133 Gjorgi SLAMKOV The Role of the State Commission for Prevention of Corruption in Implementing the Council of Europe’s Criminal Law Convention .......................................................145 Jana LOZANOSKA Implications of EU’s Accession to the European Convention on Human Rights ...........157 Macedonia – Promoter of the European Values and Principles: Macedonian Chairmanship of the Committee of Ministers of the Council of Europe Realized Activities ...............................................................................................165

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Interview
341.176(4):354.61-05(497.7)(047.53)

Macedonia Proved Its Capacity to Chair Major European and International Organizations
Antonio MILOSOSKI
1) Your Excellency, the Macedonian Chairmanship of the Committee of Ministers of the Council of Europe is about to close its curtains. Could you share with us your thoughts on the Macedonian input towards the agenda of one of the oldest pan-European institutions and point out the highlights of the mutual relations thus far?

I generally consider that during our Chairmanship we have actively furthered the CoE principles and values and have contributed to the reform process of the organization launched by the Secretary General. The Chairmanship’s priorities and the events organized in Macedonia are a reflection of the developments in Europe and in the CoE, ensuring complementarity of actions. They fit well into the reform process of the oldest political pan-European organization and reinforce the efforts to make it more responsive to the new challenges. This was also confirmed by the statements of the Secretary General, Mr. Jagland, and of the President of the Parliamentary Assembly, Mr. Çavuşoğlu, when we presented our Chairmanship’s priorities. The objective of the reform process launched by the Secretary General is to revive the Council of Europe and regain its political relevance by introducing measures for reforming the budget process and format, streamlining the Programme of Activities, introducing a new concept of external presence. This is the first stage of the reform. The second concerns structural adjustment of the Organization in order to achieve the long-term objectives - the creation of the unique European space based on values and addressing the new challenges of the European societies. Among those challenges, certainly the prevailing question is how to strengthen the social cohesion while preserving the multiculturalism of the European societies. In fact, this issue has been included in our priorities and is directly linked to the second priority of fostering integration while respecting diversity under which numerous events were organized in Macedonia.
H.E. Antonio Milososki, Minister of Foreign Affairs of the Republic of Macedonia and Chairman of the Committee of Ministers of the Council of Europe (May – November 2010).

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– Antonio MILOSOSKI –

In my opinion, the reform process of the Council of Europe should also cover the Committee of Ministers. If we want to increase the political impact of the organization and of its decision-making body, certain modifications and modernizations are required regarding the chairing of the Committee of Ministers. The idea is to consider whether changes in the period of chairmanship and its conduct (introducing a trio model of chairmanship following the example of the EU) can make a difference. I will share my thoughts on this proposal with the colleagues in the Committee of Ministers and see how this idea of ours will develop further. 2) Multiculturalism nowadays is a milestone of every contemporary society. Concurrently, it represents an indicator of intercultural and inter-religious dialogue and coexistence. Was the Macedonian pattern of nurturing a multicultural, multiethnic, multi-confessional and linguistic diversity beneficial in promoting and implementing the Council of Europe’s main objectives and values in the broader context?

Yes, we have stressed on several occasions how proud we are of our model of multiculturalism which has its roots in the past. Our traditions are based on the coexistence and respect for the diversities in our society. In certain areas we have adopted the highest standards of protecting the cultural, ethnic, religious and linguistic diversities and we are ready to share our experiences with others. Despite the fact that states can learn from each other, we should bear in mind that each society has its own specifics and there is no universal and easily applicable solution to the problems related to multiculturalism. 3) In the capacity of a Council of Europe Committee of Minister’s chairman how do you perceive the Council of Europe’s role in resolving conflicts end supporting post-conflict societies on their road towards democratic transformation and consolidation?

I would say that the monitoring function of the Council of Europe, performed by the specialized monitoring bodies, including the monitoring by the Parliamentary Assembly of the Council of Europe and the Congress of Local and Regional Authorities in Europe, contributes to resolving conflicts and assisting post-conflict societies in consolidating their democracies. So, through setting standards, providing expertise and monitoring, the Council of Europe performs this role. The main goal of the European Commission for Democracy through Law, known as the Venice Commission, is to maintain peace through democracy and
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Macedonia Proved Its capacity to chair Major European and International Organizations

democracy through peace. This Commission plays a significant role in crisis management and conflict prevention by providing advice on the constitutional law of countries that have experienced or are experiencing the risk of ethnic and political conflicts. Also, the work of the Commissioner for Human Rights and ECRI are highly valued. In fact, conflicts are best prevented if human rights are guaranteed and protected. No matter how simple this may sound, it is still the best maxim advocated by the Council of Europe to prevent conflicts. 4) In the light of celebrating the 60th anniversary of the ECHR (which overlaps with the Macedonian Chairmanship, thus providing added value), how does the Macedonian Chairmanship contribute to the reform process of CoE, particularly to the implementation of the Interlaken Declaration?

As you are aware, the reform of the Court and providing the long-term effectiveness of the control system of the European Convention on Human Rights are among the top priorities of the Organization. Through the conference organized in Skopje on 1 and 2 October under the theme “Strengthening subsidiarity: integrating the Court’s case-law into national law and judicial practice” we have been able to provide continuation in the discussion on the Interlaken process - a bridge from Interlaken to Izmir, where the next High-Level Conference on the Future of the Court will be held in 2011. The principle of subsidiarity is in the basis of the Interlaken process, so it was important to consider this sole issue separately. Macedonia is glad that the conclusions reached at the Skopje conference will be presented at the conference in Izmir. I believe that this legacy from our Chairmanship will be praised by all the member states. 5) In today’s integrated world, the effective and efficient functioning of an institution such as the Council of Europe is hardly conceivable without complementarity and narrow collaboration with other relevant international organizations. Could you comment on the synergy and the Council of Europe’s relationship with other trans-national actors?

The Council of Europe cooperates closely with the EU, OSCE, UN and other relevant international organizations. Complementarities and synergies are ensured through the Memorandums of Understanding signed with these entities. In the
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– Antonio MILOSOSKI –

interest of all is to preserve their own specificities and comparative advantages and avoid duplication. In view of their different mandates and membership, there is room for everybody to work and contribute to the stability and security in Europe. However, perhaps the closest ties are forged with the EU also due to its future accession to the European Convention on Human Rights which will complete the European legal space, thus far avoiding any duplication between the Strasbourg and Luxembourg Courts. On a number of occasions when I have spoken on behalf of the Council of Europe, representing the Committee of Ministers, I have never missed the opportunity to stress the areas where synergies exist and where they can be created. 6) Republic of Macedonia is handing over the Chairmanship to the Republic of Turkey. At the end of this process, would you describe the advantages of heading an important international organization for the Macedonian foreign policy? Which are the benefits for affirmation of the Republic of Macedonia in the broader international framework?

The Chairmanship has increased the visibility of the Republic of Macedonia in the international relations, especially on the European political scene. I believe that Macedonia proved that is capable of coping with all the challenges associated with the Chairmanship of the Committee of Ministers. This is an indication that we are ready to undertake all other responsible duties that might come out of a future membership of the EU and NATO. The experience accumulated in the conduct of this important task can open new possibilities. Definitely, this is a good reference for our future candidatures, such as a candidature in the Human Rights Council of UN and a possible candidature for the OSCE chairmanship.

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341.176(4).075(560)

Turkish Chairmanship With the Council of Europe Committee of Ministers: Perspectives and Vision
Ahmet DAVUTOĞLU
Turkey became a member of the Council of Europe (CoE) in 1949, which has been established with the aim of providing an answer to the fundamental needs and hopes of the European peoples in the post World War II era. Since then, The Council of Europe, has withstood the test of history and played a crucial role in enhancing and consolidating political stability and democratic security in Europe through promoting the respect for human rights, democracy and the rule of law. Today, it is the only genuinely pan-European organization covering the entire continent, except Belarus and Kosovo. But, it needs to polish its credentials and remind the international community that is more relevant than ever in the European political scene. Considering the knowledge and expertise it has built up for 60 years, and its ability to make the best of it, I believe that this monumental organization which symbolises the principals and values of Europe can transform itself into a more innovative, flexible and forward-looking mechanism. I am taking over the Chairmanship of the Committee of Ministers from my colleague and friend Mr. Milososki at such a critical time. I aim to continue his efforts in reinforcing the political role, the visibility and the influence of this organisation both on the European and international scene. Our priorities are defined and the activities envisaged for the chairmanship are selected keeping in mind the constructive and leading role that the CoE can play in today’s Europe. Turkish Chairmanship, in this respect, will support the comprehensive reform package presented by the Secretary General. We believe that the reform process will help the CoE to adopt itself to the changing political landscape. We are ready to coordinate and cooperate with him on the implementation of this reform process.

H.E. Ahmet Davutoğlu, Minister of Foreign Affairs of the Republic of Turkey.

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– Ahmet DAVUTOĞLU –

Securing the long-term effectiveness of the European system of protection of human rights is another priority for us. The European Court of Human Rights (ECtHR) is the most visible mechanism of the system. Continuing the previous Chairmanship’s efforts (i.e. Switzerland and Macedonia), we will host a followup conference in April 2011 on the reform process of the Court which has been launched in Interlaken on 18-19 February 2010. This will be an opportunity to review the specific proposals which will be presented by the relevant committees of the CoE on measures that do not require amendment of the Convention. We believe that the independent tools which monitor the obligations of the member states related to the respect for human rights, democracy and the rule of law make this organisation unique. We aim to highlight, during our chairmanship, the important role they play in raising the standard of life of European citizens by organising conferences on issues that are high on the European agenda. We will encourage the participation of the European or international actors active in those fields in order to provide a broader perspective on these issues as well as to promote the comparative advantage of the CoE mechanisms. Another priority for us will be to encourage the EU to accelerate its accession process to the European Convention on Human Rights (ECHR). We will work closely with the EU to this end. Europe is now facing resurgence of intolerance and discrimination. Over the past few years, all CoE member states have been affected by deteriorating social ties, radicalisation and polarized perceptions and bias towards other cultures or faiths within our societies. The CoE, which has carried out a mandate for 60 years to ensure the fundamental preconditions for security and stability in Europe, is the most relevant regional/international actor to deal with these new challengers. Yet, it requires a collective political will and a concerted effort within the organization. The Secretary General and I, therefore, proposed to create a “group of eminent persons” to prepare a report as a basis for possible future CoE action. This group consisted of 9 recognised individuals who have the expertise and a particular interest in the subject, will be supported by the CoE Secretariat and the Turkish chairmanship. The group is expected to bring a new perspective to the identification of current problems and definition of a new concept of “living together” that could be proposed of the citizens of European societies. We count on the support and cooperation of Macedonia for keeping this organization as the beacon of human rights, rule of law and democracy in Europe for the next generations…

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Democracy, Political Reforms & Civil Society
341.176(4-677eu).009

The EU and the Council of Europe: Towards Greater Collaboration and Partnership
Viviane REDING
When the President of the European Commission, José Manuel Barroso, attended the 60th anniversary ceremony of the Council of Europe in Strasbourg last year, in October 2009, he spoke of the important role it played in helping Europe emerge from a painful past. A year later, with the Lisbon Treaty in force, I am very much focused on where the Council of Europe can take Europe in future. Last year President Barroso spoke of the importance of visionaries, of aspiring to a better respect for human rights. I believe that, despite the great strides we have taken in the last 60 years, we need to hold on to this visionary approach, always aspiring to do better. After all, if nobody steps forward and sets greater standards, we will never move forward. That is, I believe, a driving force behind the Council of Europe that I hope to apply to the newly created post of Commissioner for Justice, Fundamental Rights and Citizenship. As the EU’s Commissioner for Justice, Citizenship and Fundamental Rights, I am in a very good position to talk about the importance of long-standing cooperation the EU has with the Council of Europe. It stands to reason that two institutions with such similar goals would work together fruitfully; especially since the 27 EU Member States are all part of the Council of Europe, which has 47 Member States. Our cooperation covers all fields of competence of the Council of Europe: human rights, democracy and rule of law, and is quite diversified: from regular exchange of information to the use of the Council of Europe monitoring mechanisms as a useful source of information in a number of areas of interest for the European Union, to the organization of joint activities. This is also backed up by very important work on the ground: an illustration of the intensity of cooperation is that close to 40 Joint Programmes are currently in operation, worth a total amount of €62 million, 80%-co-financed by the EU.

Viviane Reding,Vice-President of the European Commission and EU Commissioner responsible for Justice, Fundamental rights and Citizenship.

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– Viviane REDING –

This represented over 20% of the Council of Europe’s programme of activity for 2009. This makes the EU the main contributor to Council of Europe operations: 70% of voluntary contributions in 2009. But now we have a chance to deepen the relations between the two organizations: to the benefit of European citizens.

Charter of Fundamental Rights to entrench the Convention on Human Rights
The European Union will work hard to defend and improve citizens’ rights. The legally binding Charter of Fundamental Rights, achieved by the Lisbon Treaty, and interpreted by the Court of Justice entrenches all the rights found in the European Convention on Human Rights. The Charter, however, allows for more extensive protection entrenching other rights and principles derived from the common constitutional traditions of the EU Member States, the case law of the European Court of Justice and other international instruments, including, notably, instruments of the Council of Europe. These rights include economic and social rights and the so-called “third generation” fundamental rights, such as data protection, guarantees on bioethics and on good and transparent administration. The Charter of Fundamental Rights makes it clear that the level of protection provided must be at least as high as that of the Convention on Human Rights. The access of the EU to the Convention of Human Rights will complement the introduction of the legally binding Charter of Fundamental Rights. Accession to the Convention will ensure that the case-law of both Courts – the Court in Strasbourg and the Court in Luxembourg – evolves in step. It is therefore an opportunity to develop a coherent system of fundamental rights protection throughout the continent with a strong promise for a Europe truly united by law and in values. Development of a common culture on Fundamental Rights in the EU: accession to the ECHR is the best means of ensuring harmonious development of the case law of the European Court of Justice and the European Court of Human Rights. A judge elected in respect of the EU would bring additional expertise on the EU legal system to the Strasbourg Court.

Right to a fair trial: better EU rules to impact on the back-log of cases in Strasbourg
The entry into force of the European Convention on Human Rights (ECHR) on 3 September 1953 was the crowning achievement of centuries of European
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The EU and the council of Europe:Towards Greater collaboration and Partnership

endeavor to hold rulers and laws accountable to human rights. Since then, the European Court of Human rights in Strasbourg has brought justice to people who did not find it in national courts of the 47 countries that signed the Convention. At the Strasbourg Court, around one hundred thousand cases are waiting to be heard. Of these, about one quarter are related to the right to a fair trial. I believe that Justice delayed is justice denied. That is why the European Union will work with the Council of Europe to clear the big backlog of cases and the long delays. The European Union has a strong interest in the efficient functioning of the Court. Better EU rules protecting the right to a fair trial that can consequently have an impact on the back-log of cases in Strasbourg. EU needs to create a real single area of justice. Citizens and companies should be confident that their rights will be protected no matter where they are in the EU. They should be able to engage in cross –border procedures without facing too many procedural difficulties or exaggerated costs. To develop a common area where judicial decision taken in one jurisdiction can be effectively enforced in other jurisdictions as easily as they are nationally, we first need mutual recognition between EU Member States of each other’s judicial decisions. This can be achieved by setting common minimum standards. To this end, the European Union has recently adopted the first ever EU law protecting citizens’ fair trial rights by obliging Member States to provide interpretation and translation to suspects. The Commission will pursue its efforts by proposing a series of measures to improve procedural rights in criminal cases and build a true “equality of arms” between the rights of the prosecution and the rights of the defence. Judicial cooperation cannot work when there is a risk that standards of human rights protection, such as poor detention or prison conditions, have slipped below the level that is now clearly set out by the Charter. From now on, the Charter of Fundamental Rights must become the compass for all EU policies. The European Court of Human Rights will have fewer occasions to intervene on matters linked to EU law if the EU is beyond reproach when it makes legislation and when Member States implement it.

European Day of civil Justice and Crystal Scales of Justice prize
In order to assist European citizens in understanding role that civil justice may play in their lives European Commission and the Council of Europe (CEPEJ) in 2003 established 25 October European Day of Civil Justice. The Day is an opportunity for the public to familiarise themselves with the civil justice system, which should make it easier for them to access it. Events that are organised
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– Viviane REDING –

together with Council of Europe and also by number of Member States every year are aimed at getting people closer to civil justice, to show them, that their rights could be effectively protected, that they should not hesitate to use various opportunities and procedures that are offered to them. This year, main event of the European Day of Civil Justice will take place in Ljubljana. It will focus on broadly speaking family law area, and will bring together stakeholders, who will consider future of broadly understood family matters, European judicial training, as well as use of IT in mediation. Quality and innovation in the area of justice is at heart of both European Commission and the Council of Europe. In the context of the European Day of Civil Justice, the two organisations created in 2005 a European prize for innovative practice in civil justice organisation and procedure: the Crystal Scales of Justice. The original purpose of this award was to discover and spotlight innovative and effective practices either in court organisation or in respect of the conduct of civil proceedings in the courts of Europe, so as to improve the operation of the public system of civil justice. This prize has represented an excellent way of encouraging European courts to emulate each other in introducing new practices that contribute to improving the quality of civil justice. During these years, the competition evolved. Today, it is not anymore limited to civil justice but its aim remains the promotion of best practices and innovative projects, creative ideas that proved to be useful in practice, thus worth to be implemented in other States. Participation is wide-open: participants can be relevant national administrations, but also NGO’s, judicial authorities, prosecutor’s offices and others whose work is related to operation of justice in a Member State of the European Union or the Council of Europe.

Joint Conferences
The Joint Conferences are a mean to raise a debate with stakeholders and represent an important basis for the drafting of future legislations. The Council of Europe and the Commission organized the Conference “Towards a better access to justice for citizens”, dealing mainly with legal aid and mediation. In 2004, the joint Conference “Towards an ideal trial” discussed the use of electronic communications to send a claim to court and the added value of the simplified civil procedures, such as the “small claims” and the payment order. The most recent joint conference took place in Strasbourg 30 November-1st December 2009 and was devoted to the adoption procedures in Europe. It has been also the occasion for the Commission to disseminate the findings of its study about adoption procedures between Member States and to invite EU Member States to sign the revised CoE Convention on adoption.
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The EU and the council of Europe:Towards Greater collaboration and Partnership

The Convention on Human Rights
The European Convention on Human Rights is managed by the Council of Europe (“CoE”) and widely seen as the most important rights instrument in Europe as it gives citizens of all 47 Contracting Parties and individual right to bring a complaint against any Contracting State before the European Court of Human Rights (the “Strasbourg Court”). The entry into force of the Lisbon Treaty on 1 December 2009 represents an historic breakthrough for the European Union. The accession of the EU to the European Convention on Human Rights is not only an option but a requirement in the Lisbon Treaty. The 27 Member States of the European Union have already acceeded to the Convention. With EU accession, the specificity of the Union as a distinct legal entity vested with autonomous powers can be properly reflected in proceedings before the European Court of Human Rights. The recent launch of accession negotiations of the European Union to the European Convention on Human Rights marks an important step in the relations between the EU and the Council of Europe. EU accession to the Convention on Human Rights will strengthen the partnership between European Union and the Council of Europe as it will enhance the credibility of the strong commitment of the EU to fundamental rights.

An opportunity for both the EU and the Council of Europe
As the Secretary General of the Council of Europe pointed out recently “protecting human rights is not just about the Court condemning states. It is about anticipating problems and cooperating in their solution”. Protecting human rights is not about creating a culture of litigation, it is about upholding human dignity and the full enjoyment of rights. The accession of the European Union to the Convention is an incentive to develop the policies that strengthen the effectiveness of the fundamental rights that people enjoy in Europe. The world is changing rapidly: in 60 years Europe’s place in the world could change even more than it has done in the last 60. Human rights will play an ever more important part in the way Europe is seen in the wider world, and the role Europe can play in it. With the opening of a permanent European Union delegation to the Council of Europe in 2010, I believe we are at the beginning of a new era, both in our bilateral relations but, more importantly, but in the way we build a European area of justice fit for the 21st century.
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Council of Europe Must Rise to the Challenges of a Multicultural Europe
Maud de BOER-BUqUIcchIO
Since its creation the Council of Europe has witnessed and contributed to fundamental changes in Europe. It has played a key role in the bridging of dividing lines in Europe, between north and south and between east and west. Today the Council of Europe has a unique role in bringing together almost all European countries under a common framework of standards and co-operation on human rights, democracy and the rule of law. The Council of Europe is a pan-European organisation and the leading reference on compliance with standards of democracy, human rights and the rule of law Europe with its: standard-setting activities; monitoring of progress in respect of standards; assistance and co-operation activities; awareness-raising work, in particular through campaigns.

History and the present challenges that our member States face show that our democratic values cannot be taken for granted. After more than 60 years, the Council of Europe’s mandate is still highly relevant. However, we have reached a crossroad and must adapt our structures, approaches and working methods to a constantly changing world and in order to be able to carry out our mandate effectively. After six decades of existence, at the time your country has completed a very successful chairmanship of the Committee of Ministers, it is also time to look back at the past achievements. The creation of the Council of Europe contributed to healing the wounds after World War II by providing a basis for renewing European partnerships, and find common ground in order to build trust and solidarity to foster growing European unification. Strasbourg represents a city of reconciliation between France

Maud de Boer-Buquicchio, Deputy Secretary General of the Council of Europe.

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– Maud de BOER-BUqUIcchIO –

and Germany after World War II, and hosts numerous European institutions, embodying Strasbourg as capital of the Greater Europe. The Council of Europe also supported the establishment and development of institutions and mechanisms of democracy in the emerging democracies of Central and Eastern Europe. As such it played a pivotal role in uniting a divided Europe after the fall of the Berlin Wall in 1989, the democratic upheavals in Central Europe, the collapse of the Soviet Union in 1991 and the dissolution of Yugoslavia. The Council of Europe provides the first enforceable Human Rights Treaty: the European Convention on Human Rights, signed in Rome on 4 November 1950, established an unprecedented system of international protection for human rights, offering individuals the possibility of applying to the Court for the enforcement of their rights by member States. Many fundamental rights are further protected by other key legal instruments, such as the European Social Charter, the Convention on the Prevention of Torture and the Framework Convention on National Minorities. A hallmark of the Council of Europe achievements is Europe as a death penalty free zone. Through its new generation of treaties which are also open to non-European countries, the Council of Europe has become a worldwide reference in the fight against cybercrime, trafficking of human beings, and the protection of children against sexual violence. But what are the challenges for the future? With 47 member States, the Council of Europe must continue to reflect and adapt to the changes of European societies and must rise to the challenges of a multicultural Europe. Diversity can find its place within the framework of the core values and principles which the Council of Europe has established. Peace, democracy and the rule of law on the European continent should not be taken for granted: there is still a need for the consolidation of democracy in countries which are currently undergoing a difficult process of democratic transition. Council of Europe values and legally-binding standards, which have served as a foundation for stability in Europe over the past six decades, are under strain because of the threat of terrorism, the consequences of the economic crisis, and inter-cultural and inter-religious tensions. However, these Council of Europe values must be respected by member States not only in times of stability and peace, but also in times such as these. These values are our values, and our values are who we are. To make sure that the Council of Europe is able to meet these challenges, te Secretary General has launched a reform, aimed at making the organisation
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council of Europe Must Rise to the challenges of a Multicultural Europe

more relevant, effective and focused on the areas where it has an added value and a real impact. Co-operation and co-ordination with other European institutions are one of key priorities in this respect. The European Convention on Human Rights system and the Court have achieved remarkable success. They exert considerable influence on the rights and freedoms in the 47 member States, and their impact extends even beyond the frontiers of Europe. However, the Court is now a victim of its own success, since it has seen the number of applications grow almost exponentially. The Council of Europe has, over the last years, considered numerous proposals to deal in a more efficient way with applications. As to the Council of Europe activity in the Western Balkans, the Council of Europe is present and active in the whole of the region. The countries in the Western Balkans benefit from the wide range of Council of Europe instruments and co-operation programmes, often carried out jointly with the EU. Additionally, the EU’s Copenhagen criteria is directly drawn from the Council of Europe’s standards of democracy, human rights and rule of law; and the statutory commitments undertaken by its member States. Two very important events with direct and far-reaching implications for the protection of human rights in Europe have recently taken place: firstly, on 1 December last year, the Treaty of Lisbon entered into force; and secondly, on 1 June 2010, Protocol No. 14 to the ECHR amending the control system of the Convention entered into force. These two legal instruments both provide for the accession of the European Union (EU) to the European Convention on Human Rights (ECHR). The accession will be an event of historic importance for European citizens: a continentwide area of human rights will be created, in which 47 governments and the institutions of the EU will be bound by the same human rights standards and monitored by the same human rights court. Official talks between the Council of Europe and the EU on the accession started on 7 July 2010. The Chairmanship of your country and especially Minister Miloshoski have attached a great importance to the process of accession of the EU to the ECHR and the measures to improve the efficiency of the convention control system. Showing the country’s attachment to diversity, the chairmanship also invested in the promotion of the values of a multicultural society, through debates on the situation of national minorities, the value of cultural heritage or the role of media in fostering multicultural dialogue and tolerance. Youth policy has a crucial role to play, to ensure that all young people fully enjoy their human rights, develop their capacity to actively commit themselves to the protection of human rights and human dignity, and to enhance their participation in public life.
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– Maud de BOER-BUqUIcchIO –

On 1 July 2010 the Council of Europe Convention on the protection of children against sexual abuse and sexual exploitation entered into force. To support the ratification of this convention, the Council of Europe will launch its campaign to stop sexual violence against children on 29 November in Rome. Roma and travellers issues have been a priority for the Council of Europe for many years. The Council of Europe campaign “Dosta” which means enough, raises its voice saying “enough” to injustice, “enough” to intolerance, “enough” to prejudice and “enough” to discrimination. Currently Roma has become a headline all over Europe. The Chairman of the Committee of Ministers, Minister Miloshoski and the Council of Europe General-Secretary Thorbjørn Jagland proposed a high level conference to co-ordinate international response to the challenges that Roma people in many European States are facing. The High Level Meeting was held on 20 October and resulted in a Strasbourg Declaration, a genuine blueprint for the Council of Europe work on Roma and with Roma in the future. We have obtained concrete results to contribute to the social inclusion of Roma which will continue to have an impact - also when the Roma issue is out of the headlines again. In many respects, the response to the events concerning Roma over the past several months is a precursor of the future Council of Europe – more reactive, more relevant, more politically influential and more operational. A Council of Europe which is ready to deliver quick, effective action, building on its vast body of experience, standards and monitoring data. I think that your country can be proud to have accomplished a very successful chairmanship and made a tangible contribution at such an important moment in the history of the Council of Europe.

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341.176(4)-027.1(497.4)

Slovenia and the Council of Europe in 2009: A View from the Inside
Samuel ŽBOGAR
I am honoured to have been invited by my colleague and friend Antonio Milošoski to share my experience in the Crossroads at the time when Macedonia is successfully chairing the Committee of Ministers of the Council of Europe. As the title indicates, the article will focus on the period of Slovenia’s Chairmanship of the Committee of Ministers of the Council of Europe, namely from 12 May 2009, when Slovenia took over the Chairmanship, to 18 of November 2009, when the Chairmanship was handed over to Switzerland. However, I will not go into detail about the preparations, as Macedonia is more than well aware of the characteristics of such preparations and because our two countries share such information at their regular consultations. We knew at the time that difficult tasks were ahead of us and that we would have to put all our energy into taking up various challenges during the Chairmanship. The Council of Europe (CoE) has seen many developments since the Slovenian Chairmanship of the Committee of Ministers in 2009. Having closely followed these developments, I must say that indeed much has occurred in a year in the Organisation which was not so long ago criticised for its inefficiency and obsolescence. The most evident change was the reform of the European Court of Human Rights and of the whole Organisation. My remark is reinforced by the fact that the Secretary General sees the two processes as a one, interlinked and inter-dependent process. From Slovenia’s point of view, it seems that many goals we strove for during our Chairmanship are now being realised. If this was a speech, this would be a perfect place to thank all those who contributed to this end, including Macedonia. Slovenia held the CoE Chairmanship in an especially commemorative period. We had the opportunity to be actively involved in many important anniversaries, i. e. the Organisation’s 60th anniversary and the 50th anniversary of the European Court of Human Rights, symbolising the protection of human rights in Europe. These jubilees reminded us that they should not be seen as pure marks of age or even signs of obsolescence of the Organisation and its institutions, but as
H.E. Samuel Žbogar, Minister of Foreign Affairs of the Republic of Slovenia.

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– Samuel ŽBOGAR –

evidence of its successful operations, the good practices it has developed as well as the expertise and experience it has gained through the years. We all came to a conclusion that the Council of Europe needed to undergo a reform and prove its relevance once again. The Council of Europe was among the first international organisations Slovenia, as a new country, joined after declaring independence in 1991. It was without a doubt the organisation that helped Slovenia to achieve its democratic imperatives in the time of transition. The standards and the values the Council of Europe stands for helped Slovenia to shape the country to a full-fledged democracy that it is today. Our endeavours in the international arena proved that Slovenia, despite its size, does not lack ambition to carry out a few (to us) very important projects. The first was the non-permanent membership of the United Nations Security Council in the period 1998/1999. After the successful integration into Euro-Atlantic institutions on 1 May 2004, Slovenia first chaired the Organisation of Security and Co-operation in Europe (OSCE) in 2005 and then held the Presidency of the Council of the European Union in the first half of 2008. A year later Slovenia was presented with another challenge – it was our turn to take over the Chairmanship of the Committee of Ministers of the Council of Europe. These experiences allowed us to comprehend that a successful execution of such a project required a well coordinated approach and collaboration of the whole government, especially the most relevant sectors. It became obvious that due to the nature of work of the Council of Europe as a whole and because of the competence of its executive body, the focus needed to be on defining the methodology of interministerial cooperation. As a result, we devoted a lot of time to organising the work prior to the Chairmanship of the Committee of Ministers, and drafted our priorities and programme, which required the collaboration of all ministries. The President of Slovenia and the Prime Minister took an active part in the Chairmanship. They participated in the events in the framework of the Chairmanship as well as other events of the Council of Europe, such as the Summer University, the Parliamentary Assembly session and the commemoration of the Organisation’s 60th anniversary.

Enhanced dialogue with the Parliamentary Assembly
The first thing that comes to mind when being asked about the CoE Chairmanship is without a doubt the situation I was confronted with at the outset of our Chairmanship. Although I was well informed about the tensions between the Organisation’s two statutory bodies regarding the election of a new Secretary
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Slovenia and the council of Europe in 2009: A View from the Inside

General, it was during my first meeting with the members of the Parliamentary Assembly of the Council of Europe (PACE) that I realised the extent of their frustration. The Q&A part of the Standing Committee of the Parliamentary Assembly session in Ljubljana in the end of May reminded me that I first needed to listen and talk to the PACE members. We then openly discussed the issue of the election of a new Secretary General. Something had to be done. The tension between the two statutory bodies was generated from a disagreement on the procedure of the election of the Secretary General. At its ministerial meeting in Madrid, the Committee of Ministers confirmed a short list of candidates prepared by the Committee of Ministers’ Deputies. The list was drawn up in compliance with the “Junkers recommendations”. In accordance with the Rules of Procedure, the PACE was then supposed to elect a new Secretary General from the list. The problem was that the list was too short and created without prior consultation with the Parliamentary Assembly. The two bodies understood their statutory obligations differently. I decided to first sit down and talk with some of the PACE representatives. Thus, prior to the Assembly’s summer session, members of the Bureau of the Committee of Ministers and I met with the PACE Presidential Committee in Brussels. This particular discussion was useful, but unfortunately did not enable us to overcome the difficulties we were facing. Nonetheless, it was a step in the right direction. The appropriate format of dialogue between the two bodies was formed. We organised regular ad hoc meetings between the Bureau of the Committee of Ministers and the Presidential Committee and discussed new ideas on the future cooperation between the two bodies. This format proved to be the right one. After the June ad hoc meeting in Brussels, in my capacity as the Chairman of the Committee of Ministers, I addressed a letter through the President of the Parliamentary Assembly to all PACE members to convey the Committee’s readiness for dialogue and cooperation, stressing the importance of avoiding a hiatus in the Organisation’s leadership. I also asked the addressees to consider first and foremost the higher interest of the Council of Europe. Unfortunately, at that point, my efforts were fruitless. We met five more times. When the PACE members withdrew the election of the Secretary General from the summer session agenda, we faced the danger of an institutional crisis. The very day the point was withdrawn from the agenda, I expressed concern over the adopted decision. Nevertheless, I persevered with my plan to continue the dialogue knowing that neither the Parliamentary Assembly nor the Committee of Ministers could benefit from such a situation. Slovenia was aware of the fact that such a situation would damage the Organisation’s image at the time of its 60th anniversary. I urged all to take up their responsibility and assured the PACE members that the Committee of Ministers had considered their views before its
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– Samuel ŽBOGAR –

decision in Madrid and that it had acted in compliance with the Statute and the regulations. It was time for the Assembly to do the same. I reminded them that the Committee had decided to engage in a constructive dialogue with the Assembly. Furthermore, I appealed to them to take part in this constructive dialogue so we would be able to move forward with ideas on the future cooperation and with the election of the Secretary General at the PACE autumn session. I presented my proposals and reflections for the enhanced dialogue between the Parliamentary Assembly and the Committee of Ministers, even though they had not been first discussed with the entire Committee of Ministers. I proposed strengthening the Joint Committee’s role and inviting rapporteurs of various PACE committees to participate in relevant meetings of the Committee of Ministers’ subsidiary groups and chairs of the Committee of Ministers’ groups and committees in the relevant PACE committees. Furthermore, I proposed that cooperation between the Organisation’s two statutory bodies and the Rules of Procedure for the election of the Secretary General be reviewed. My proposal was aimed at enhancing cooperation and clarifying the consultation process between the Parliamentary Assembly and the Committee of Ministers for the future as well as strengthening the gender aspects of the election process. I also stressed that it was imperative to task the new Secretary General with further developing various levels and forms of cooperation between the two bodies as well as with presenting a report to the Parliamentary Assembly and the Committee of Ministers on other possible measures to enhance dialogue. This second package of proposals proved to be more appropriate and gained strong support from both, the Committee of Ministers as well as the Parliamentary Assembly. The following ad hoc meetings during Slovenia’s Chairmanship were organised in the same format that was deemed appropriate by those included in the process. After concessions on both sides, we reached an agreement – the Chairman of the Committee of Ministers and the President of the Parliamentary Assembly adopted a joint statement on the proposals on enhanced dialogue and cooperation. The PACE endorsed the proposals at its autumn session and the Committee approved them in October, following the election of the Secretary General. The next step was the formation of an open-ended Ad Hoc Working Party for the re-examination of the rules and procedures for future elections of the Secretary General of the Council of Europe. The Working Party’s mandate was concluded during the Swiss Chairmanship and I do believe we will all endeavour to avoid such situations in future. My country and I learned an important lesson: no matter how carefully you prepare your priorities and plan your activities, you always need to leave some room for the unexpected. Something similar occurred during Macedonia’s Chairmanship. The August events made the Roma issue one of the main priorities. The Secretary General and the Chairman decided to organise a
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Slovenia and the council of Europe in 2009: A View from the Inside

CoE meeting on this issue focusing on helping Roma improve their lives. I believe that this is yet another opportunity for the Organisation to prove its relevance. However, this should not be a project of the Chairman and the Secretary General, but a joint endeavour of all CoE member states.

Chairmanship Priorities
Slovenia’s Chairmanship programme and priorities were based on the commitments made at the Third Summit of the Council of Europe held in Warsaw in 2005. So, our main aim was to ensure continued progress in this context. Our priorities were organised around the four main areas agreed in Warsaw with this in mind: 1. Promoting common values of the Council of Europe, namely human rights, democracy and the rule of law; 2. Strengthening the security of European citizens; 3. Building a more humane and inclusive Europe; 4. Fostering cooperation with other international and European organisations and institutions. When discussing our endeavours in the area of promoting common values of the Council of Europe, Slovenia set the continuation of the reform of the European Court of Human Rights as one of its core priorities. I am pleased to observe that the reform is well on its way and I would like to congratulate Switzerland for their successful Interlaken Conference and Macedonia for organising a conference on the strengthening of subsidiarity as a preparation for the high-level conference planned during the Turkish Chairmanship. During Slovenia’s Chairmanship, the entry into force of Protocol No. 14 to the European Convention on Human Rights (ECHR), which foresees certain reform measures, was the top priority. The non-ratification by the Russian Federation at that time made it even more important. We therefore endeavoured to maintain the necessary political impetus to achieve progress in different areas, in other words, we promoted the ratification of Protocol No. 14bis and the Madrid agreement on the provisional application of certain provisions of Protocol No. 14, pending its entry into force. The Slovenian Ministry of Justice and the International Law Department at the Ministry of Foreign Affairs were very active in the process. At the end of September 2009, I welcomed the statement by the Russian State Duma according to which the question of the ratification of Protocol No. 14 to the ECHR would be resumed. My deputy later addressed a letter to the Registrar of the Court informing him of the letter by the Permanent Representative of the Russian Federation to
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– Samuel ŽBOGAR –

the Council of Europe, inviting the Registrar to provide all relevant explanations, clarifications or comments he considered appropriate regarding the manner in which the Court intends to apply in practice certain provisions of the ECHR, as amended by Protocol No. 14, once it will have entered into force. The Registrar replied by an explanatory note. Some progress was achieved during the Slovenian Chairmanship and when handing over the Chairmanship to my Swiss colleague, I was very optimistic about the ratification in the nearby future. Protocol No. 14 entered into force on 1 June 2010. However, the Protocol was not the only issue Slovenia dealt with when promoting the Court’s reform during its Chairmanship. In line with the welcome given by the Committee of Ministers to Switzerland’s intention to host a high-level conference on the future of the European Court of Human Rights in Interlaken in February 2010, one of our efforts was to create fertile ground for the reform of the Court in preparation for the conference. In this context, Slovenia organised a round table on the short-term reform of the Court which was held in Bled in September 2009. The participants identified a number of possible ways to ensure the protection of the right to a fair trial within a reasonable time. The event provided experts with a platform to exchange national experiences on best practices. We decided to focus the discussion on this particular topic because Slovenia is well acquainted with the issue of the problematic duration of court proceedings. On this occasion, the experts launched a discussion forum which allowed us to hope that it would be possible to bring the Court closer to citizens – they discussed issues of potential interest in the framework of a shortterm reform of the Court, in particular repetitive applications and “class actions” or collective applications, as part of the preparations for the Interlaken Conference. The proceedings of the Bled discussions, with a summary and conclusions, were published by the Ministry of Foreign Affairs in a special volume shortly after Slovenia’s Chairmanship and distributed by our Permanent Representation to the Council of Europe to the European Court of Human Rights judges in Strasbourg. Slovenia also organised a round table on criminal procedural rights of the European Convention of Human Rights in European Union Law in Portorož. The round table addressed questions regarding the origin and status of rights in criminal proceedings under the Convention and the EU Member States’ efforts to create an instrument in the field of criminal procedural rights. It was emphasised that any new legislative initiative should be based on the ECHR in order to avoid double standards. Attention was to be given to the origins, work and procedures before the European Court of Human Rights and European Court of Justice and their compatibility in the field of criminal procedural rights. Just two weeks after our Chairmanship concluded, the Lisbon Treaty was ratified, which immediately launched a discussion on the accession of the European Union to the European Convention of Human Rights, which would create a common legal space. During
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Slovenia and the council of Europe in 2009: A View from the Inside

Macedonia’s Chairmanship, the negotiations started and the accession of the European Union to the ECHR seems nearer. Having closely followed the work of Secretary General Thorbjørn Jagland in this field, I fully support him in stressing the importance of compatibility of the processes of the reform of the Organisation and that of the Court. I do believe that the reform of the Council of Europe cannot be successfully carried out without the simultaneous reform of the Court that represents such an important part of its work. The accession of the European Union to the ECHR as a high priority of the Secretary General for the year 2011 demonstrates that he intends to put his words to action. But the Organisation’s reform is not a topic we dealt with directly during our Chairmanship, so I will leave this discussion for others and continue with Slovenia’s priorities. At the very outset of our Chairmanship, I reacted to the action taken against the organisers of the Moscow Pride Parade. People belonging to sexual minorities enjoy the same right to freedom of expression and to freedom of assembly as any other individual within the jurisdiction of a CoE member state. According to the established case law of the European Court of Human Rights, peaceful demonstrations cannot be banned simply because of the existence of attitudes hostile to the demonstrators or to the causes they advocate. I also expressed my concern over the fact that this was not the first year such a situation developed, having in mind that many of the CoE member states are still faced with intolerance towards certain social groups. There are still too many violent manifestations of intolerance in member states, including Slovenia. The Forum for the Future of Democracy, which was held in October 2009, addressed the issue of electoral systems. It tackled the question of how to increase the legitimacy, apply new technologies, and enhance the role of media and the responsibilities of political parties in electoral systems. My contribution at the Forum focused on two aspects of elections: the legal framework and the related social, political and practical conditions needed for free and fair elections, and citizen participation and representation. The Forum is a useful arena for discussing democracy. We still do not have a single definition of the term. Slovenia organised many events and the Council of Europe adopted several decisions relating to Slovenia’s priority of promoting the common values of the Organisation. Nonetheless, I do not intend to write about all of them. I would like to draw attention to the issue that remains very high on the agenda of the international community and especially of the Council of Europe, i.e. Roma. I briefly touched upon this issue when discussing lessons-learned in drafting and adjusting the priorities. Slovenia directed its activities towards the rights of Roma also in the framework of the implementation of an active policy on the integration and protection of minorities. The approach towards education of Roma in Slovenia is based on the belief that Roma must be included in the educational system and
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– Samuel ŽBOGAR –

that we must do our best to prevent their social exclusion. Generally speaking, we endeavoured to raise awareness among national and international players of the positive approach taken in Slovenia, for we believe that Slovenia, despite some problems in this area, has good practices and results to show. The first of the two main events in this context was the international conference on “Education for Roma: Achievements, Opportunities and Future Challenges” that Slovenia organised in collaboration with the Council of Europe in Brdo pri Kranju. This was an opportunity to highlight the importance of education conducive to successful integration of Roma and Travellers into society. It also concluded the CoE project on education of Roma children in Europe by registering the salient points for the guidance of all interested conducting or planning action in this field. In this connection, the Committee of Ministers adopted the Recommendation on the education of Roma and Travellers in Europe, stating a set of principles directed at CoE member states to be implemented at the national level in the field of education, in order to help remedy the underprivileged status of Roma and Travellers in European societies. The second event was held in Lendava, where the town and the Roma settlement of Kamenci (Slovenia) hosted an international conference organised by the Slovenian Chairmanship in cooperation with the Council of Europe, which marked the launch of the implementation of the CoE project on the European Route of Roma Culture and Heritage. My personally favourite project relating to the Roma issue that was carried out during our Chairmanship was the one that included Roma children in a creative manner and vividly illustrated the importance of the intercultural dialogue surpassing the prejudice and preventing the social exclusion of marginalised social groups. This was the project entitled “You See Me, I See You: Cultural Diversity in the Eyes of the Roma” that resulted with an exhibition in the Palace of Europe in Strasbourg. The exhibition presented the role of the photography on the dissemination of negative images and stereotypes of Roma while exploring how photography could help change views of Roma identity and culture. The authors of the project divided the participants to Roma and non-Roma groups that photographed each other in order to reflect how they perceive one another. The purpose of the project was to change the stereotyped image of Roma, build awareness of cultural diversity in Europe today and establish intercultural dialogue between the Roma minority and the majority with a sustainable re-evaluation of the social image of Roma. This project is an appropriate link to a broader issue of intercultural dialogue. Slovenia with its geographical position at the cross-roads of Romanic, Germanic and Slavic cultural space is in a great position to strengthen intercultural understanding. Intercultural dialogue was given a primary focus during the Slovenian Chairmanship and presented the continuation of Slovenia’s priorities during
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Slovenia and the council of Europe in 2009: A View from the Inside

its Presidency to the Council of the European Union in 2008. Considering the importance of intercultural dialogue as an instrument for the promotion of an open, complex cultural environment fostering the diversity and dynamism of the European society, the Slovenian Chairmanship worked on ensuring the effective implementation of the White Paper on Intercultural Dialogue. In this context, it welcomed the strong interest shown by the UN Alliance of Civilisations in drawing on the White Paper when devising its own national plans and regional strategies for intercultural dialogue. The Slovenian version of the White Paper was published during the Chairmanship. Slovenia’s exhibitions in the Palace of Europe were related to the Chairmanship priorities and focused on intercultural dialogue. The first exhibition was the already-mentioned “You See Me, I See You” displaying the “Say to the camera” part of the project, while the second one showing the “Ljubljana Process” entitled “Rehabilitating our Common Heritage” was based on the rehabilitation projects of the architectural and archaeological heritage in South East Europe. Slovenia started the “Ljubljana Process” during its Presidency of the Council of the European Union and successfully continued it during the CoE Chairmanship. The Ljubljana Declaration, which was adopted at the Ljubljana Conference, represented a milestone in preserving cultural heritage in the region. The participants acknowledged the value of the social and economic potential of heritage and its key role in the region. By adopting the declaration and a joint ministerial statement of the beneficiaries of the Ljubljana Process, the participants confirmed their individual and joint responsibility in preserving and promoting the common European cultural heritage and their readiness to co-operate and to take decisions that will enable the continuation of the process in 2011. I would like to commend Macedonia’s Chairmanship and underline the importance Slovenia attaches to the continuation of the “Ljubljana Process” with the organisation of a conference on the Social Value of Cultural Heritage in Europe and the adoption of the Skopje Agenda, reaffirming the member states’ commitment to the protection of cultural heritage in Europe. Writing about intercultural dialogue and cultural heritage reminds me of the establishment of diplomatic relations between Turkey and Armenia on 10 October 2009. I welcomed this event with the hope that the process would prove successful and that the two countries would be able to overcome the wounds of the past and establish normal relations in their mutual interest and in the spirit of the Statute of the Council of Europe. On the occasion of the signing of the Protocol on the Establishment of Diplomatic Relations and the Protocol on the Development of Bilateral Relations between the Republic of Armenia and the Republic of Turkey by the ministers of foreign affairs of the respective countries in Zurich, I was fortunate enough to be invited by my Swiss successor, Federal Councillor and Head
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– Samuel ŽBOGAR –

of the Federal Department of Foreign Affairs Micheline Calmy-Rey to attend the event and offer the Council of Europe’s as well as Slovenia’s assistance in case they wished to draw on our expertise. The Council of Europe is an organisation that brings together European countries as well as Turkey and Armenia on the basis of the values of peace, understanding and cooperation. This was in my opinion a historic moment that will contribute to the strengthening of the relations between the two countries and to the regional stability and wellbeing. Our common values and norms that we have stood for as CoE members for six decades may seem obvious and self-evident to us, but not to those who live in post-conflict societies and transition societies. Even in “full-fledged” democracies this might not always be the case. Democracies tend to be imperfect. It all begins in childhood. To us it may seem natural that a child enjoys human rights that are to be protected and respected and the majority of our children are aware of their rights; elsewhere they need to be educated in this respect. The question Slovenia considers vital to the future of our continent is that of the promotion and protection of children’s rights. Slovenia’s Chairmanship worked hard in this field. In 2005, when Slovenia held the OSCE Chairmanship, we launched the pilot project on human rights education entitled “Our Rights”, which was based on the Convention on the Rights of the Child. Slovenian experts designed, initiated and led the implementation of the pilot project, which involved a number of governments of the OSCE participating States, non-governmental organisations (NGOs), individual experts, ombudsman offices, field offices of international organisations, and other stakeholders. The participating countries showed great interest, and the teaching tool was translated into 17 languages and used with about 66,000 children, including Roma children in several countries in South East Europe, Macedonia among them. The response of the participating parties was great. As a result of the 2005 OSCE Chairmanship and upon request of partners in post-conflict societies, after having used the Our Rights material on their own for a few years, and asked for further expert support, especially with the teaching materials, we decided to continue the project during our CoE Chairmanship. In preparation for its Chairmanship of the CoE Committee of Ministers in 2008, Slovenia decided to support its partners in Bosnia and Herzegovina, Kosovo, and North Ossetia in the Russian Federation in continuing the project in the 2009/2010 school year. Our experience with the project shows that there are great opportunities and needs in this field. We rest assured that such a project, as well as numerous other efforts by international organisations, non-governmental organisations, and government institutions are indeed necessary. In September 2009, Slovenia’s Chairmanship of the Committee of Ministers of the Council of Europe started with the implementation of the human rights project entitled “Our Rights” for 50,000 children in Kosovo, Bosnia and Herzegovina
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Slovenia and the council of Europe in 2009: A View from the Inside

and North Ossetia in the Russian Federation. The project was Slovenia’s concrete contribution to the democratisation of these societies, especially the promotion of tolerance and respect through human rights education. Under the patronage of the President of Slovenia, we organised an international conference on children’s rights and the protection against violence, held in Ljubljana in October 2009. We also gave our full support to the development of the Council of Europe Policy Guidelines on Integrated National Strategies for the Protection of Children from Violence. These guidelines constitute a significant contribution from the Council of Europe to the 20th anniversary of the United Nations Convention on the Rights of the Child. Throughout our Chairmanship, we followed with great attention the issues relating to the development of democracy and the rule of law in South East Europe, in the Caucasus and in Belarus. We welcomed the encouraging developments recorded in Belarus during the summer of 2009, particularly the opening of the Council of Europe Information Point in Minsk, which I had the pleasure of inaugurating. Distressed over the death sentences passed by Belarus courts in the autumn, I decided to make two appeals. First with the President of the Parliamentary Assembly and second with the Secretary General to President Lukashenko, asking him to declare a moratorium on the death penalty and to commute the sentences passed to terms of imprisonment. I still believe that there is a need for a balanced approach towards Belarus without exercising unnecessary pressure. First and foremost, the Belarusian side should adopt decisions that would enable the Council of Europe to understand the developments in the country as a positive sign. During Slovenia’s Chairmanship, the Parliamentary Assembly voted in favour of restoring the Special Guest status to the Parliament of Belarus under the condition that Belarus declares a moratorium on the death penalty. In my capacity as Chair, I expressed my deepest concern and reiterated my strong and urgent call on the Belarusian authorities to take, without any further delay, all necessary steps to put an end to the death penalty and secure its final abolition. The latter has not yet happened. The Council of Europe Information Point in Minsk contributes to raising awareness in Belarus. It is already carrying out campaigns against domestic violence and death penalty, and I am certain that other relevant campaigns will follow. The overview of the cooperation with Belarus was discussed immediately after our Chairmanship; however, the death penalty in Belarus does not contribute to a constructive relationship with the Organisation or to the discussion on the accession of Belarus to certain Council of Europe conventions. The status of the Special Guest has not yet been restored. Some progress has nonetheless been made. The Organisation and Belarus resumed discussion on the country’s accession to certain CoE legal instruments. Belarus has demonstrated its readiness to do so. The exhibition “Death is not
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– Samuel ŽBOGAR –

Justice” currently displayed in Minsk and organised by the European Union and the Council of Europe is in my opinion a step in the right direction. I welcome all the positive developments. These were the issues that stayed with me the most and the ones I will remember Slovenia’s Chairmanship by. I would only like to stress once more that I am proud to see that changes are taking place within the Council of Europe. The Secretary General’s reform proposal is setting the Organisation on the right path of finding it the right place in the international arena by contributing where it can contribute the most. Slovenia fully supports the idea or reforming the Secretariat to make it more flexible and cost-efficient. We need to put the relevance of the Council of Europe first and allow those with a vision to make that a reality. It is also high time to reconsider the ownership of the Organisation and the appropriate way to make this intergovernmental organisation an organisation owned by its member states. Having listened to the current Chair, Minister of Foreign Affairs of Macedonia, my dear colleague Antonio Milošoski, at the 65th general debate of the United Nations General Assembly in New York, I must say that he is doing everything in his power to promote the role of the Council of Europe and the Macedonian Chairmanship in the international arena as the guardian of human rights, the rule of law and democracy. In this context, I would also like to welcome the launch of the Group of Eminent Persons that will further contribute to the Organisation’s visibility. I am truly looking forward to discussing the progress in all areas addressed in my present contribution. I believe I am not being pretentious when stating that Slovenia’s CoE Chairmanship is an additional proof of our devotion to multilateralism and cooperation between international organisations. In the time of globalisation, this is the only way of ensuring respect for human rights, democracy and the rule of law. Slovenia has learned a lot from its Chairmanship and we have proven that a small country can achieve great results by choosing the right approach. This experience was another conformation of an old Slovene proverb “Nice word finds a nice place”. I would only like to add that listening never hurts. I truly believe we have once again proven that we are a mature diplomacy able to carry out major tasks. We are also happy to see the good work done by Macedonia at the Council of Europe.

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341.176(4):321.7

“Without Organised Civil Society, Democracy Is Nothing More Than Technocracy!”
Jean-Marie hEYDT
This slogan is not just rhetoric, but reflects the full significance of women and men participating in the future development of their societies and the environments they live in. Participating does not, however, mean taking decisions, but providing insights for decision-makers who have been democratically elected to run the public affairs of a state, region or municipality. Contributing in this way to public decision-making requires the maximum possible representativeness of the diversity of citizens’ points of view. Acting as the voice of millions of men and women throughout Europe is a task which international non-governmental organisations (INGOs) must perform effectively and capably.

A major advance that is unique worldwide
The member states of the Council of Europe were pioneers in this area and recognised as early as 19521 that organised civil society, now represented by the Conference of International Non-Governmental Organisations (cf statement by the Chair of the Committee of Ministers, 25 January 20102), can make a major contribution to states, regions and local authorities, as well as international organisations, especially during periods of confrontation or crisis, when dialogue is difficult. If the latter is backed up by civil society, bridge building becomes
1

2

INGOs held consultative status from 1952; this was formalised in a Committee of Ministers resolution in 1972. “The Council of Europe is playing an irreplaceable role in the building of a single Europe. Its intergovernmental co-operation method is enriched by a prominent parliamentary dimension – so well represented by your Assembly – as well as by a regional and local dimension in the form of the Congress of Local and Regional Authorities, not forgetting civil society, represented through the Conference of International Non-Governmental Organisations. Thus, the huge diversity of our continent is represented within a single institution. No organisation can claim to be more representative of all Europeans” (Micheline Calmy-Rey, Chair of the Committee of Ministers).

Jean-Marie Heydt, President of the Conference of International Non-Governmental Organisations of the Council of Europe.

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– Jean-Marie hEYDT –

possible, as there is complementarity of action. We must be clear, however: parliaments and local and regional authorities do have a role and responsibilities… and organised civil society is not there to take their place or decide for them. Our role is to promote shared discourse and encourage the authorities to engage in dialogue with local or national associations, in particular regarding the challenges and concerns related to people’s living environments. It surely does not have to be repeated that the Conference of INGOs is a fully-fledged part of the Council of Europe’s “quadrilogue”. It neither acts in place of the other bodies nor duplicates what is done elsewhere, but performs its own role.

The Conference of INGOs, the bridgehead of a huge network of associations throughout Europe
The Conference comprises some 400 INGOs, or almost 400 federations of associations conducting the same activity in several European countries. It is a very dense network of men and women who work for the collective good on a daily basis, and very often voluntarily, in the environments they live in. It is for them and through them that the very existence of the Conference of INGOs of the Council of Europe becomes truly meaningful. The INGOs, which previously held consultative status, now hold participatory status.3 The latter status – which is again a unique new development worldwide – is a clear reflection of a desire to facilitate a contribution to the common commitment in terms of the fundamental values defended and promoted by the Council of Europe. It also involves genuine “political recognition of the INGOs as a partner within the council of Europe”. It gives them even more possibilities for establishing relations and co-operating with the political authorities in particular. This is especially important as regards public authorities which challenge or do not yet provide the full range of fundamental rights for their citizens and sometimes deny civil society the right to voice its opinions, its demands or even its condemnation of injustices and violations of rights. The Council of Europe can therefore take pride in facilitating on an in-house basis vital synergies between the various national, local and international authorities and the highest levels of representation and decision-making on the one hand and the grassroots on the other. The Conference of INGOs is wholeheartedly committed to this process. It has played a relentless, persistent and often vital and ambitious forward-looking role to make sure that this remains the case. This therefore involves an ongoing commitment by NGOs and INGOs from all over Europe and their Conference to represent, and promote
3

Committee of Ministers Resolution, 2003.

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“Without Organised civil Society, Democracy Is Nothing More Than Technocracy!”

the action of, organised civil society and hence of all population groups, regardless of their backgrounds, cultures, histories or living conditions. This means that we are now fully integrated in the Council of Europe “quadrilogue” with the Committee of Ministers, the Parliamentary Assembly and the Congress of Local and Regional Authorities. In practice, when one of the four pillars makes a major proposal, it is submitted to the other three for their opinion, although the final decision always lies with the Committee of Ministers. One example here was the code of Good Practice for civil Participation in the Decision-Making Process – which the Conference of INGOs drew up at the request of the Council of Europe. Once we had completed the text, we submitted it to each of the pillars and only presented it to the Forum for the Future of Democracy held by the Council of Europe in Kyiv (2009) after taking account of their comments. That was a practical demonstration of active and effective participation by organised civil society in government activity. Without the existence of participatory status – a unique advance worldwide for civil society – this work would have been virtually impossible. Being able to bring together around a single table NGOs from different fields and of different sizes, sometimes with opposing views, facilitates debate leading to a consensus that takes account of what really matters. The outcome of the discussions and exchanges means that states have an objective understanding of the views and perceptions of citizens from all over Europe. In complete contrast with the position at other European organisations (European Union, OSCE, etc), participatory status also gives INGOs a degree of initiative that goes far beyond just responding to requests. One example among many here was the establishment of the Expert Council on NGO Law. It was set up in January 2008 and is an independent body answerable to the Conference of INGOs that is specifically charged with monitoring the legal status of NGOs in Council of Europe member states. Its remit is to contribute to the creation of an enabling environment for NGOs throughout Europe by examining national NGO law and its implementation and promoting its compatibility with Council of Europe standards and European good practice. In practical terms, its studies to date have focused on conditions for setting up NGOs and internal NGO governance. In addition, and from a more symbolic point of view, participatory status enables the President of the Conference of INGOs (or a representative) to attend all the events in which the other pillars take part – such as the Summit of Heads of State and Government in Warsaw in May 2005 – as head of delegation, on the same basis and with the same rights. For us from the voluntary sector, with limited experience of discussions at this level, this involves recognition that we have a strong base and, much more significantly, is an opportunity to convey the
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– Jean-Marie hEYDT –

views of organised civil society as objectively as possible at the highest level of government.

NGOs committed to reform of the Council of Europe
Our thinking here is based on the following observations and principles: the major international organisations are changing. They have to do so in order to respond more effectively to the desire of Europe’s peoples for greater effectiveness, transparency, clarity and progress for the benefit of all citizens. Europeans are constantly striving for more effective implementation of democracy, for genuine rule of law, for respect for fundamental and human rights, for social justice, for an economy with a human dimension and for sustainable development in a peaceful environment. We also believe that modern societies that are committed to freedom and international institutions that are in tune with their times are both able to combine representative democracy and participatory democracy, thereby enabling all people to experience as fully fledged citizens a democracy capable of anticipating changes and taking up contemporary challenges. It is therefore entirely natural that the Council of Europe, which was set up in 1949, is putting its goal of reform into effect through a process designed to rationalise and raise the profile of its activities. It is also true that the successive enlargements of the European Union and the recent adoption of the Lisbon Treaty have created new conditions which increase the need to coexist in harmony in a complex world. We long ago moved beyond the ideological stage of an organisation which manages the common good but forgets that the process will be of no benefit and will not succeed unless it serves the well-being of the individual. In other words, regardless of the form it takes, the European construction process is no longer possible if it is not devised for, and in co-operation with, citizens. In recent decades, the Council of Europe recognised this trend and developed a novel operating structure by establishing and gradually institutionalising cooperation between the Committee of Ministers, the Parliamentary Assembly, the Congress of Local and Regional Authorities and the Conference of INGOs. This is a high value-added development, which must be turned to good account when launching a reform process. We know that reforms are positive when they really bring about improvements, greater effectiveness and higher profile results. They are welcome if they bring about innovation in co-operation processes and in joint efforts for major causes. And reforms are vital when they contribute to greater well-being and more harmonious co-existence.
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“Without Organised civil Society, Democracy Is Nothing More Than Technocracy!”

The INGOs in the Conference are passionately committed to social change and actively involved in promoting it: they have demonstrated this in recent decades and are doing so again in the current period of great political, cultural and social tension. The Conference’s network of INGOs and the Conference itself have already carried out several reforms to adapt structural and operational arrangements precisely for the purpose of adding even greater value to the Conference’s work and policy recommendations, while also supporting the changes at the Council. The INGO Conference will therefore make an invaluable contribution to the reform of the Council of Europe, as it is an entity that is fully representative of all the INGOs in Europe, from the smallest to the largest, bringing together associations, foundations, trade unions and federations. It is the voice of Europeans of all political persuasions, all ages and all social and cultural backgrounds, whose hopes and wishes it pools together. It works to ensure respect for their rights, by providing information and ensuring the development, application and proper implementation of legislative and regulatory decisions and measures. The Council of Europe has not yet completed the process by conferring balanced and growing responsibilities on the component bodies of the “quadrilogue”: more needs to be done here, and this is what the reform projects should aim at as a matter of priority so as to bring about institutional improvements and greater effectiveness, which the Conference of INGOs would gladly sign up to. Working for greater well-being for Europe’s citizens without heed to partypolitical biases and with an ongoing concern to express the points in common that bridge our diversity and the divide between minority and majority groups is the cornerstone that unites us within the Conference of International NonGovernmental Organisations of the Council of Europe.

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341.176(4)-021.412.1

The Importance of the Council of Europe
Terry DAVIS
The Council of Europe has two important characteristics. Other international organisations may share one or other of these characteristics to some extent, but none of these others share all of them. The first characteristic is that the Council of Europe can truly claim to be pan-European. It is generally agreed that Europe is a continent which stretches from Iceland to Turkey and from Portugal to Russia. Only one of these countries (Portugal) is a member of the European Union, but all of them and all the countries between them are members of the Council of Europe. It was not always like this. At the time of its birth in London in 1949, the Council of Europe covered only 10 countries, and they were all in Western Europe. During the next few years, other countries joined the club, but membership was still restricted to Western Europe. Then after the changes symbolised by the fall of the Berlin Wall in 1989, there was an explosion of membership with the inclusion of all the newly democratic countries of Central Europe, Eastern Europe and South East Europe. Now every country in Europe is a member with the sole exception of Belarus. All the others, all 47 of them, are members of the Council of Europe. However, it has never been enough for a country to be geographically part of Europe and to be recognised as an independent country. It must also be recognised as a democracy and subscribe to the aims of the organisation because the timing of the meeting in London 60 years ago was not an accident of history. It was held in the aftermath of the Second World War. The men who came to London for this historic meeting represented a generation of statesmen who had lived through, and in many cases fought in, a war which had resulted in the deaths of hundreds of thousands of people, civilians as well as soldiers, and the liberation of the death camps and concentration camps followed by the Nuremberg Trials had revealed abuses of human rights on what was regarded as an unprecedented scale. They were united in saying ‘Never again’, and they recognised the need to work together to ensure that it did not indeed happen again. That is why the Treaty
The Right Honourable Terry Davis, CMG, Former Secretary General of the Council of Europe (2004-2009).

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– Terry DAVIS –

of London referred to “the pursuit of peace based upon justice and international co-operation”, reaffirmed the devotion of the founding members to the spiritual and moral values which they regarded as the common heritage of their peoples and the true source of individual freedom, political liberty and the rule of law, principles which they described as the basis of all genuine democracy and then referred to their belief that the maintenance and further realisation of these ideals as well as economic and social progress, required a closer unity between all likeminded countries of Europe. In short, the Council of Europe was established in order to enable its member countries to develop and disseminate democracy, to defend and extend human rights and to advocate and encourage the rule of law in its member states. That is the second important characteristic of the Council of Europe. It is value-based. Advocating these values of democracy, human rights and the rule of law is one of the most important tasks of the Council of Europe, but it is not the only function of the organisation. Three other tasks are equally important: to ensure that the Council of Europe values are always taken into account in the decisions and policies of all member states; to develop agreed standards based on these values; and to take account of thee shared values in the search for solutions to common problems. Of course, some of the most important European problems are economic issues, and it is a fact that the member governments of the Council of Europe decided some years ago that the organisation should no longer deal with such matters even though they had been specifically included in the list of its responsibilities at the time the Council of Europe was established. For most of the member states, economic issues are now regarded as the prerogative of the European Union, not only internally but also externally – including relations between its member countries and non-member countries in Europe and elsewhere. The clock cannot be turned back. However, there is more than enough work left for the Council of Europe – even with the narrowest definition of democracy, human rights and the rule of law. The development of democracy is a never-ending process. That is why the Council of Europe continues to help its member countries to develop and improve their democratic systems and procedures. The best known aspect of this work is a special body established by the Council of Europe in 1990, the European Commission for Democracy through Law (usually called the Venice Commission), which has made a tremendous contribution to the drafting of new constitutions and amendments to constitutions in member states during the first 20 years of its life. Of course, the need for advice about constitutions and amendments in Europe is much less now than it was 20 years ago. That is why the Venice Commission is increasingly consulted about other important
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The Importance of the council of Europe

aspects of democracy such as electoral codes and the arrangements to ensure fair elections in its member countries. The monitoring of the actual conduct of national elections is one of the responsibilities of a different part of the Council of Europe, the Parliamentary Assembly. The Assembly consists of 636 MPs drawn from the parliaments of the 47 member countries. Similarly, another representative body of local councillors from member countries observes local elections and monitors the compliance of member countries with the European Charter of Local Self-Governance which sets out the principles applicable to local government – notably the principle of local autonomy. Apart from the direct and immediate effect of these observation missions on the conduct of the elections being observed, the subsequent reports of the observers serve as the basis for specific co-operation programmes with the governments concerned in order to help countries to do better next time. Of course, free and fair elections are fundamental to democracy, but there is more to democracy than the effective implementation of electoral codes. That is why the Council of Europe has helped to establish Schools of Political Studies in many member countries in Eastern and South Eastern Europe with a Summer University for Democracy in Strasbourg, and why the Council of Europe is engaged in what I can only describe as blue-sky thinking about so-called edemocracy. There is no doubt that one of the greatest threats to both democracy and the rule of law is corruption. That is why the Council of Europe established a body called the Group of States against Corruption (known by the acronym GRECO) in 1999 in order to improve the capacity of each member state to fight corruption. As for human rights, the most important issue in Europe in recent years has been the prevention of terrorism and the need to achieve the right balance between anti-terrorist measures and the protection of human rights. The first point to be made is that this conflict is greatly exaggerated. One of the most important human rights is the right to life. Terrorism is simply murder for political ends, and we are entitled to expect our governments to protect us against it. At the same time, it is neither wise nor necessary to abuse our other human rights or the human rights of other people. It is not wise because the most effective anti-terrorist measures are those which do not create more terrorists than they stop, and fortunately it is not necessary - as the Council of Europe showed in the guidelines which it published 5 years ago. As for effectiveness, the Council of Europe agreed its convention on measures to suppress terrorism 30 years ago, brought the convention up-to-date 8 years ago and then adopted two more important conventions 6 years ago in order to stop incitement and recruitment to commit acts of terrorism in another country and prevent the collection of money in order to finance terrorism in another country. Thus we see another international response to another international problem.
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– Terry DAVIS –

At the same time, it must be recognised that the recent revelations about “extraordinary rendition” have shown that much more needs to be done to ensure that member governments discharge their obligations to protect the human rights of everyone in their territories. More evidence can be found in the judgments of the European Court of Human Rights. There is a constant stream of judgments against member states. Too often our member governments are found to have abused human rights, and even more often they are found to have forgotten that they not only have an obligation to refrain from abusing someone’s human rights but also have an obligation to do everything they can to prevent these rights being abused by other people. Fortunately, responsibility for ensuring that member governments discharge their obligations is not simply left to the Court of Human Rights – struggling, as it does, to cope with the overwhelming number of applications from people who have not been able to obtain justice in their own countries. Indeed, more than 30 years ago, it was widely accepted that it was not good enough for the Council of Europe to take action after the event, and that much more needed to be done through non-judicial means to prevent such abuses ever happening at all. That is why the Council of Europe established, for example, the Committee for the Prevention of Torture whose members visit places of detention, such as prisons and police stations, and examine the actual treatment of people deprived of their liberty by a public authority. The Committee began work in 1989, and its work has been widely praised by organisations like Amnesty International. After each visit to a member country, the Committee produces a report of its findings and any recommendations it considers necessary. In due course, the report and the recommendations are published with the response of the government concerned so that the rest of Europe, indeed the whole world, can see what is wrong, and what the government intend to do about it. But the work of the Council of Europe does not end there because it has another very important activity called the “Programme against Ill Treatment”, which is classed as a co-operative programme, that is co-operation between the Council of Europe and the government concerned in order to help the government to implement the Committee’s recommendations. Everyone recognises the need to extinguish a fire, but it is even better to prevent the fire. It may be a cliché to say that prevention is better than cure, but as with most clichés, there is more than a little truth in this well-worn phrase. That is why it is so important that the still relatively new Convention Against Trafficking in Human Beings covers the prevention of trafficking as well as the prosecution of the criminals responsible for trafficking and the protection of their victims. This modern form of slavery involves moving men, women and children across international borders and literally selling them for forced labour, prostitution, illegal adoption and illegal organ transplantation. Before the Council of Europe
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The Importance of the council of Europe

took up this issue, these human beings were only regarded as illegal immigrants and sent back to their countries of origin. This meant that they were treated as if they were the criminals. Now they are recognised for what they are – victims. This Convention Against Trafficking also illustrates another specific value of the Council of Europe in the constellation of international organisations. The wide membership of the Council of Europe (covering all of Europe except Belarus) includes not only the countries of destination of the victims, but also the countries of origin and the countries of transition. It follows that the Council of Europe is particularly well placed for pan-European discussion and agreement leading to pan-European action and cooperation to deal with what is by definition an international problem. Other international problems also need international solutions. Cybercrime and money laundering are outstanding examples of such problems with action having been taken and still being taken by the Council of Europe. However the Council of Europe is not only important for its achievements but also for its response to another increasingly important challenge to its fundamental values. The emergence and growing strength of extreme right-wing political parties in many European countries - including long-established democracies and founding members of the Council of Europe, such as Belgium, the Netherlands and Sweden – is a phenomenon which puts all its achievements into question. Clearly it is not enough to rely on traditional methods such as anti-racist legislation, to meet this challenge from political parties which exploit anti-immigrant, anti-Roma and anti-Islamic prejudices. Ironically, the welcome opening of borders within the European Union has aggravated this problem because it has further inflamed anti-immigrant feelings at a time of increased insecurity and unemployment. Discrimination on the basis of religion or ethnic origin is clearly incompatible with both the values of the Council of Europe and national legislation in member countries, but we cannot ignore the fact that racism is rampant everywhere in Europe. Racism will not be eradicated by laws alone. Of course, the law is important, but it is not enough. It is widely recognised that we also need to tackle the roots of racism by dealing with all those economic and social problems such as the shortage of housing and the shortage of jobs, which are exploited by racists. But this response to the challenge is also insufficient. We must also recognise that we will never succeed until we win the battle for hearts and minds and convince the overwhelming majority of people that discrimination on the basis of someone’s religious beliefs or the colour of someone’s skin is wrong – as unacceptable as rape and paedophilia. For more than 50 years a campaign at the Council of Europe has typically meant a series of conferences, colloquies and seminars attended by experts, civil
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– Terry DAVIS –

servants and representatives of non-governmental organisations. Basically, it has been the converted talking to the converted. That is important, but it is not enough. It ignores the public, the electorate - the people to whom politicians are both responsible and increasingly responsive in today’s democracies. That is why three years ago the Council of Europe launched a different sort of campaign, working in partnership with local media and local authorities with the aim of persuading people, as the campaign slogan puts it, to “Speak out against Discrimination” whenever and wherever they see it. I should add that the list of local media and local authorities participating in this campaign includes not only capital cities such as Lisbon, Moscow, Paris and Rome but also smaller cities and towns across Europe – wherever a group of local people want to do something about this legacy of Europe’s past. In addition, the Council of Europe has now created a network of “Intercultural Cities” in 11 member states. These cities are learning from each other’s experience of working at a local level to persuade their citizens to see cultural diversity as an opportunity instead of a threat and to encourage mutual respect between people of different ethnic origins and different religious faiths. The people responsible for this new style of campaign at the Council of Europe learned a lot from their experience in another campaign four years ago. It was a campaign about violence against women, including domestic violence, which is another problem which exists in all European countries. This campaign along traditional lines was launched in Madrid in 2006 and was very successful in that it resulted, as usual, in a general agreement to draft a new convention dealing with the problem, but the Spanish authorities with the support and assistance of the Council of Europe took the opportunity of its launch to draw attention to the issue by using all the methods which have been used for many years in campaigns on social issues in countries like the United Kingdom. For a few days, Madrid was full of posters on the main roads, placards in the metro stations and even beer mats in the bars – all designed to increase public awareness of the problem of violence against women, the scale of the problem and the need for something to be done about it. This new approach now needs to be extended to other issues such as the abolition of the death penalty. Everyone at the Council of Europe is justifiably proud of the leading role of the organisation in abolishing the death penalty throughout Europe. All governments of all member countries are now agreed that the death penalty is inconsistent with the right to life, which justifiably comes first in the list of human rights guaranteed by the Convention on Human Rights, but I doubt whether a majority of the people in any member state agree with their government on this issue. There has been more than one referendum where the people have rejected the view of their government in recent years- including the
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The Importance of the council of Europe

recent referendum on minarets in Switzerland. In these circumstances, people who believe that the death penalty is wrong – and I am one of them - cannot relax in the knowledge that we have convinced a majority of Members of Parliament, without having convinced a majority of the voters. Of course, such campaigns are expensive and will always depend on finding partners at a local or national level, but I am convinced that this is the best way to promote the values as well as increase the visibility of the Council of Europe and attract more resources to expand its uniquely valuable work on all fronts. In short, it is the way to enable the organisation to fulfil the aims of its founding members and to put it in its rightful place which is not only at the heart of Europe, but also in the hearts of Europeans.

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341.176(4):341.231.14(497-15)

The Role of Parliamentary Assembly of the Council of Europe
Luca VOLONTÈ
It is an honour to take part in this important issue of ‘Crossroads’ magazine which, at the end of Macedonia’s six-month presidency of the Committee of Ministers of the Council of Europe, is seeking to achieve a synthesis and reopen the debate on the role and importance of the Council on the 60th anniversary of the signature of the European Convention on Human Rights. Starting out from that important landmark in the foundation of the Council of Europe we may ask ourselves what remains, after 60 years, of the reasons which drove Europe’s political protagonists to conclude a political pact on the future of the continent. Above all it should be noted that leaders of different political groupings and representatives of different nations and histories took part in the drafting and signing of the Convention. Among them were countries that had won the war, and countries that had lost it. All were united and closely agreed in the decision not only to re-propose a list of “human rights”, all of which had been put forward in the 1948 Universal Declaration, but to provide a first and still relevant toolkit to monitor the true effectiveness of such Rights. Politics thus entered the scene and did so with vision and with intelligence so that to this day the Strasbourg Court, the Committee of Ministers and the Commissioner play a role in watchfully defending and keenly supporting the promotion of human rights foreseen by the Convention. With its consultative role the Parliamentary Assembly kept and maintains an important role in monitoring difficult situations and is active in suggesting ways of promoting human rights. In playing such a role, the Assembly has been helped by the recent presence of political groupings or families at European level. To be found in the Parliamentary Assembly are all the various political families playing an active role in the parliamentary life of the Parliament of the European Union. The advantages of such a political presence and “partisan” liveliness are countless and stem above all from the tradition and presence of European political families. European ‘Christian
Luca Volontè, Chairperson, EPP-CD Group, Deputy to the Parliamentary Assembly of the Council of Europe.

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– Luca VOLONTÈ –

Democrat populism’, together with ‘socialism’ and ‘conservatism’ are ideally and historically rooted in the end of the Second World War and now, more than in previous historical periods, find themselves having to confront the changes and challenges of the new century. Ties and collaboration between parliamentary groups from the same “political family” operating in various environments such as EU, PACE, OECD, etc.), can increase the mass of information and the background framework used to understand problems and seize opportunities for large-scale political action. Think of how useful it is for these institutions but also for the political families themselves to be able to exchange information, engage in activities together and propose initiatives through the various instruments available to their own parliamentary assemblies. The most obvious but not the only example is that of the missions organized to monitor elections or to strengthen rights and national legislations following the electoral observation exercize. Political membership of the same grouping can help make international initiatives more effective and objective both at the level of Assembly decisions and at that of preventive diplomatic and ‘moral suasion’. Considering the vitality and breadth of PACE, the fascination and difficulty of governing the political groups in the Parliamentary Assembly cannot be denied. Above all there exists an opportunity that has been little understood so far at the level of European political families and I refer to the extension of the Council to the current 47 Member Countries. That implies a much clearer political matrix for groups and a much more transparent management of relations with national party delegations. There are countries members of the PACE’s Parliamentary Groups that are not part of the EU but recognize themselves in the values and programmes of the European parties. The positive example in the EPP-CD group of having representatives of the Turkish delegation among its most active members shows that real unity on fundamental values and principles is possible together with a good chance of working together. In all supranational environments and particularly in organizations like PACE it is essential that political partners continue to seek a consensus. Doing so cannot, however, mean “an infinite or “impossible” process of mediation”. It should be politically impossible for an Assembly founded on the European Convention on Human Rights to violate the very human rights lying at its roots. That should be obvious but sometimes the Assembly itself is exposed to the temptation, most often from lobbies and external factions, to make partisan political opinions prevail over the intangibility of human rights. Such temptations are present in various international environments but should be unanimously banned by all political parties, thereby contributing to a more effective and resolute course of development of the Parliamentary Assembly itself. From that point of view too,
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The Role of Parliamentary Assembly of the council of Europe

the strengthening of identities and transparency between political parties is not an obstacle but an opportunity for understanding everyone’s positions better. A clear identity and transparent political actions contribute to strengthening links and partnerships not only inside groups and national delegations but also between parliamentary groups. Ambiguity promotes neither internal serenity nor debate between political groups, nor again the positive and clear action which the Assembly as a whole should play at Pan-European level. As mentioned, familiarity at political level within European political families and inside the political groupings in PACE helps improve the Assembly’s diplomatic and political initiatives in promoting the core values and best practices of the Council of Europe. Belonging to the same political families can often help to contextualize and act politically to resolve the controversies which can arise in many of the Council’s Member Countries. To sum up, in that sense political actions and political activism in PACE and in the Council of Europe make a positive contribution to the effectiveness of the promotion of human rights, of the rule of law and of the respect of laws which are the tasks of the Council and PACE, with humble and resolute assistance from political activities. Strengthening its political role is therefore an important necessity in reviving the Council of Europe’s “mission”. At this historical phase in the European context and in the life in common of the Council’s Member Countries, politics need to be given more room, not less weight. Therefore just as 60 years ago far-sighted European politicians agreed on the creation of a series of institutions designed to promote human rights we, today’s politicians, should be conscious of the challenges ahead and at the same time capable of the same vision as our “founding fathers”. Politics today can and should address the underlying problem of the premise behind those human rights, i.e. of those “common moral convictions and religious traditions” upon which rights and reasons were founded before the recognition of inviolable rights. The issue cannot be avoided. Is it possible today for Europe’s various political traditions to help and spur the Council’s Member Countries towards the greater respect of human rights without finding out “whether” and “where” it is possible to base them? I think the answer is no. Today, faced with the temptations and various cultural and legal hypotheses that see “positive law” as the only way of upholding human rights and the way these have evolved (second and third-generation rights) it is essential that political parties go back to tackling the root problem. To my mind, it is right to affirm that such a moral foundation should be rediscovered and revived with energy. The exclusivity of “majority rule” and of positive law alone cannot and should not be taken as being exclusive.
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– Luca VOLONTÈ –

All too often the history of the XXth Century invited us to reflect on the dangers that can arise from “positive law” and the “democratic” vote alone. Consider only the democratic election of Adolf Hitler and the laws democratically approved by the USSR’s first Central Committees. A clear return to reflecting on natural law – in progress for some years now in the US academic and political world – can represent a reasonable “way out” which politics should not rule out but should, on the contrary, engage in completely. In that sense I continue to find much food for thought in the words of the Holy Father, Benedict XVI, to the members of PACE’s Bureau last 8 September: “Keeping in mind the context of today’s society in which different peoples and cultures come together, it is imperative to develop the universal validity of these rights as well as their inviolability, inalienability and indivisibility.” On that occasion, the Pope reminded us all – all the Heads of PACE’s political groups were present – of the risks “associated with relativism in the area of values, rights and duties. If these were to lack an objective rational foundation, common to all peoples, and were based exclusively on particular cultures, legislative decisions or court judgments, how could they offer a solid and long-lasting ground for supranational institutions such as the Council of Europe, and for your own task within that prestigious institution? How could a fruitful dialogue among cultures take place without common values, rights and stable, universal principles understood in the same way by all Members States of the Council of Europe? These values, rights and duties are rooted in the natural dignity of each person, something which is accessible to human reasoning”. That is the thinking behind any kind of political action although all the “parties” clearly have their own specific roots based on their own ideals and values. There can be no lasting development and promotion of the role of PACE and of the Council that does not start out from that premise. On the contrary, such an approach is a certain source of development of the Europe of rights, liberties and duties which we are all working assiduously to achieve. Macedonia’s Presidency of the Committee of Ministers has provided an excellent opportunity to clarify many of the issues discussed here while the extraordinary initiatives on behalf of young people and inter-religious dialogue also represent important political milestones on the right road. In conclusion, the publication of “Crossroads” – the name of the journal already represents a broad political programme – gives us the opportunity to initiate a reflection and a debate which we trust we can and must continue in the future.

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341.176(4):327.51.071.51

Council of Europe as a Promoter of European Integration: Case Study: Croatia
Marija PEJČINOVIĆ BURIĆ

Having been kindly asked by the Editorial Board of “Crossroads” to write on the above topic, the mixed feelings came to me. And I deliberately use the word “feelings” instead of “reminiscences” or “reflections”, thou the second words should be logically used as the right ones to reflect on the path crossed by Croatia in CoE. But the beginning of the nineties, when Croatia had started its relations with CoE, were also the years when the aggression was launched at my country. We were defending ourselves and our right to self-determination and independence and very existence of lives and properties of our citizens, at the same time dismantling one party totalitarian system and introducing pluralist, multi party system, turning a new page in our history, a democratic one. It was not an easy job, but hopes were high. Being deprived, at those times, like many other countries from central and Eastern Europe, of true practical knowledge and experience of democratic processes and being inclined to either underestimate or overestimate them, it was not and, perhaps, it is still not, an easy task to find a proper balance between the two. And balance in all aspects, as we all know, is one of the key prerequisites for a success story, both in lives of individuals and nations worldwide. Thinking about those times, my emotions precede my reminiscence or rather do go hand in hand with them. When Belgium, Denmark, France, Ireland, Italy, Luxembourg, Netherlands, Norway, Sweden and United Kingdom signed Treaty of London on 5th of May 1949, establishing The Council of Europe and its Statute later on the same year, the moment was solemn, I presume, and also laden with emotions.
Marija Pejčinović Burić, Chair of the Joint Parliamentary Committee EU-Croatia and Deputy Member of the Croatian Delegation to the Parliamentary Assembly of the Council of Europe. Previously she has served as a State Secretary at the Ministry of Foreign Affairs and European Integration of the Republic of Croatia.

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– Marija PEJČINOVIĆ BURIĆ –

It was realization of the idea that back in the war year of 1943 Sir Winston Churchill proposed in his broadcast to the nation calling for creation of a council of Europe, more elaborately so in his post-war speech at the University of Zurich in September 1946. “Congress of Europe” of almost 1000 of governments and civil society representatives and leading politicians from all Europe, and observers from Canada and USA, gathered in Hague in May 1948. and decided to set up a body, which would be, in future, comprised of both governmental representatives and political forum of parliamentarians, and which would become important in forming European movement. In October 1948 the ground for first Pan-European organization was prepared. The experience of the horrid Second World War was only too vivid in mind of all peoples of Europe, and the need for lasting peace and reconciliation was paramount goal for the continent. The intention was never to allow the recent war atrocities to happen again on the soil of Europe or elsewhere. The key words were peace, democracy, human rights, and rule of law, dialogue, and co-operation. And as many as possible European wise heads had to be put together in a forum of Council of Europe (CoE) that would engage regularly in dialogue about binding, not dividing issues. The dialogue having no alternative in democracy. Democracy being basically agreed upon procedure. * * *

CoE has performed targeted goals for many decades and reached its peak when, after the fall of Berlin wall, became the main European political forum for co-operation and dialogue for new democratic countries of Central and East Europe ( prior to year 1989 it already had 23 member states). The new role of the Council of Europe, ascertained on the Ist Summit of Heads of State and Government of the Council of Europe countries, in October 1993, in Wien, was to help post communist democracies in countries concerned, to reach democratic standards in many fields (constitutional, political, judiciary, legislative, local government and self-government, culture, education, environment, freedom of media, fighting all forms of extremism and intolerance, refugees, minorities, basically in all walks of life), finding a common denominator wherever and whenever possible. The Second Summit of Heads of State held on October 1997 in Strasbourg underlined the importance of civil security protection and social cohesion. Human rights are again stressed as prime goal which has to be reached by simplifying two existing procedures ( through Commission and Court for Human Rights which did not sit permanently), and the conclusion was to establish a permanent European Court of Human Rights ( it started to work on 4th November 1998.),
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case Study: croatia

and is a supervising organ of the main document of CoE, namely European Convention for the protection of Human rights and fundamental freedoms ( 1950./ effective as of 1953) with 13 protocols up today. The rights and freedoms in the Convention have to be guaranteed to each citizen of Europe by all member countries of CoE, and the Court is supervising organ of the Convention. The Third Summit of Heads of State and Government in May 2005 in Warsaw stressed the importance of Europe without dividing lines, more secure and inclusive for all its citizens. And the role of CoE in the light of 5th enlargement of the EU to 25 member states, and its relations and co-operation to other European and international organizations. The European Court for Human rights was to undergo reform (a group was established to make a strategy for it), and Forum for the Future of Democracy was established with aim of strengthening all aspects of democratic life and society. * * *

But back in the early nineties, It was not always an easy task, both for “know-how providers” -namely CoE or for other “party or parties in dialogue”, 47 ( 24 more after 1989) countries with their individual histories, differing from each other in level of achieved democratic improvement and accepted and implemented democratic standards. Not even being alike in their starting positions. Those were the days when it seemed that, thou living at same time, all the European countries did not live in same age, and certainly they were not undergoing the same experience. Croatia being one of them faced with aggression, fighting the Homeland war and at the same time having to undergo demanding transition, according to the whole brand new set of economic and other democratic standards, was definitely under, to put it mildly, a lot of strain. On 4th of May 1992 the Republic of Croatia, following its international recognition, was granted a “special guest” status with the Council of Europe, which followed after Parliamentary Assembly of the Council of Europe (PACE), at its session on 21st of September 1991., and based on the 1974 SPRY Constitution, recognized the right of dissociation to the former Yugoslav republics wishing to consume this right. Application for the full CoE membership was submitted by Republic of Croatia on 11th September 1992. Years that followed: 1993, 1994, 1995 were spent in anticipating the membership. “Procedure for an opinion on Croatia s request for membership was delayed as a result of Croatian involvement in the war in Bosnia-Herzegovina. Events in Western Slavonia and former UN Sectors North and South further delayed the procedure”, says draft opinion of report on Croatia s request for membership of the Council of Europe. (PACE Doc.7510).
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– Marija PEJČINOVIĆ BURIĆ –

Two Croatian presidents, that of the parliament and that of state, signed a document on 15th March 1996 by which Croatia agreed to honor 21 obligations required by CoE to be fulfilled after the accession, a list of commitments proposed by the Political Affairs Committee of PACE which included full and effective co-operation in the implementation of the Dayton Agreement, the agreement on Eastern Slavonia and active assistance of the International Criminal Tribunal for the former Yugoslavia. On 6th November 1996 Croatia became 40. full member of the Council of Europe, after signing of CoE Statute, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Framework Convention for the Protection of National Minorities, the European Convention for the Prevention of Torture and Inhuman Degrading Treatment or Punishment, and the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime. In more than four years of the dialogue with CoE prior to admission, mostly through a permanent Croatian Parliament delegation to PACE and visits by PACE Rapporteurs to Croatia, CoE legal experts advices and high-level meetings, Croatia achieved thorough knowledge and commendable implementation of democratic standards which helped it to close monitoring process of honoring 21 obligations, assumed upon 1996 accession to the CoE, on 26th September 2000. Post-monitoring dialogue with Croatian parliament, which continued after monitoring procedure has been closed, and which was additionally oriented towards more efficient functioning of the judiciary, freedom of the media, minority protection, refugee return in Croatia, was closed, based on the report and recommendation of PACE Monitoring committee, in 2003. * * *

Going over facts in a nutshell definitely does not do justice to the process of becoming and being a full fledged member state of the Council of Europe and is just reminder of how, after some time, years of hope, frustration, joy, reconciliation and wisdom gained, must be squeezed in couple of sentences which do no justice to the valuable lesson learned or rather to the quite longish process of learning a lesson. Becoming mature, either as a person or a democratic state, is a challenging process, with lots of ups and downs. The beginnings are not easy, nor were it the Croatian one back at those days in CoE. Out of 52 documents of different profiles, dealing one way or the other with Croatia in Parliamentary assembly of the Council of Europe during the mentioned period, there is written declaration No.213 on the built and natural heritage of Croatia dated 24 September 1991 (PACE Doc.6513) signed by 29 MP s, members of PACE, which states:
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case Study: croatia

1. Profoundly concerned by the tragic war being waged in Yugoslavia; 2. Recalling that Croatia is an important region for the European cultural heritage in terms both of the natural environment and architecture; 3. Concerned to learn that historic sites such as Vukovar, Osijek, Petrinja, Gospić, Kostanjevica and the Plitvička Jezera National Park-which are part of the world s natural heritage-have been damaged; 4. Fearing the damage which might be inflicted on historic towns along the Adriatic coast such as Zadar, Split, Šibenik and Dubrovnik, 5. Appeal to the international community to do its utmost to put an end to hostilities; 6. Urge the Council of Europe, UNESCO, Europa Nostra, Ecovast and all other organizations involved to take all requisite action to repair the damage to the Croatian cultural heritage as soon as the conflict ceases. I quote this very first paper in PACE dealing with Croatia exclusively, just to underline the conditions under which Croatia started its journey to the membership of the Council of Europe. On one hand culture and beauty, on the other hand aggression and destruction of the very same. CoE, with its decades of elaborate and meticulous work on finesse and all aspects of democracy, pronouncedly rule of law, above all human rights, and having had peace on European soil for almost half a century and, on the other hand, post communist country fighting back the aggression, fighting for independence and democratization at the same time. Almost a mission impossible. PACE, CoE, with its numerous national delegations and their particular interests and intricate components and, often, diametrically opposing intelligence they were receiving from many sides, had a hard time to clarify many issues in regard to then Croatian reality. At the same time Croatian authorities, fighting for the very existence of the country, with countless refugees and down to earth problems, sometimes had hard time understanding all the basic yet sophisticated democratic tools used on them in form of requirements they had to fulfill to become part of the democratic society of Europe, through instruments of CoE. At those times there were “hard feelings” on both sides. CoE versus Croatia and vice versa. Sometimes justified, sometimes not. Having in mind that CoE is an international organization whose main tasks include the strengthening of democracy and rule of law as well as human rights protection in Europe, considered the basic common denominator for a democratic state or rather, society, but also the protection of common European cultural heritage, and seeking solutions to abundance of long-term and modern social problems and promotion of its policy of intercultural dialogue and interreligious
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– Marija PEJČINOVIĆ BURIĆ –

dimension, one has to pay tribute to the role CoE played as an “apt teacher of the democracy and democratic procedure” back in nineties for all the post communist countries in Europe, regardless of their individual status of maturity at those days. Committee of Ministers, Parliamentary Assembly, Congress of Local and Regional Authorities in Europe, European Court of Human Rights and the Commissioner for Human Rights, as the main institutions of CoE, proved to be of paramount importance in not only promoting European integration, but also in preparing countries for European integration, on a very sound basis. The big family of countries for which CoE provided and still provides forum for clarification and co-operation on many issues, engaging direct representativesparliamentarians from 47 countries of Europe representing 800 million people, is still a commendable force. In case of Croatia, harmonization of national legislation with European standards is expressed by acceptance of CoE conventions( 20 prior to admittance) and 83 treaties signed and ratified by the Republic of Croatia and 10 more which have been signed so far. Ten of Partial CoE agreements also signed by Croatia are a particular form of co-operation within CoE and they allow member states to abstain from participating in a certain activity advocated by some other member state. Over the past decade various Croatian representatives have regularly participated in over fifty permanent and ad hoc bodies of CoE. Since obtaining full membership in 1996, on the level of Minister of Foreign Affairs (after 2004) on yearly basis, every week on level of ambassadors and permanent representatives, four times a year on PACE, through permanent Delegation of the Croatian Parliament to PACE (5 members and 5 deputies) and the same in the Congress of Local and Regional authorities of Europe (CLRAE). The Republic of Croatia has one judge at the European Court of Human rights and a Government representative before the court. * * *

Co-operation between the Republic of Croatia and CoE is definitely multidimensional, and includes programmes of technical assistance and cooperation, participation in all of the steering committees and many expert bodies covering manifold activities of CoE, discussing the issues of common interest to CoE and its member countries, resulting in relevant decisions through bodies of CoE. Since 2001, two programmes have been successfully implemented in Croatia; Co-operation programme to strengthen the rule of law ( the functioning of the judicial system in all its aspects, notably fight against corruption and organized crime, participation in the regional CARDS Police programmme, fight against trafficking, development of local and regional democracy and transfrontier co- 56 -

case Study: croatia

operation and fight against sexual exploitation of children) and assistance and technical co-operation programme in the field of media. Croatia attended almost all multilateral meeting organized by CoE in past several years, be it educational or expert (European and regional conferences, seminars, workshops, round tables, etc.) In 2007 Croatia hosted the Regional Conference on the issues of disabled persons. A seminar called “Active participation of men in fight against family violence” was held in Zagreb (as a part of CoE s campaign for the suppression of violence against women) the same year, as well as a seminar of the Venice Commission UNIDEM on the rights of national minorities. It would be tiresome to continue listing all the aspects of co-operation between Croatia and CoE, or other countries, for that matter. Thou the result of this numerous activities are, undoubtedly, maturing of democracy in Croatia. The post-.communist countries of Europe back in the early nineties have come a long way. It was neither easy way all of the time, nor it was always a pleasant process for “pupils”, perhaps it was not always pleasant for “teachers” either, but, in the end, the result counts. And result is the one CoE has to be proud of for, providing “basics” of democratic life to so many different post-communist countries. One is aware that it was quite demanding task, for both sides in the process, of course. The role of the CoE as a promoter of European integration, in case of Croatia and, I presume, many other countries as well, was of extreme importance. It presented and insisted upon acquiring and implementing the set of democratic values which are conditio sine qua non for any country striving to be a part of operational European integration. Furthermore, one can say that CoE has made a considerable impact on individuals (identity, expectations etc.), and on the whole society (democracy, market economy etc.). Membership in CoE has greatly helped “europeanisation” of Croatia in all three areas of its excellence – human rights, democracy and the rule of law. The very fact that CoE and EC/EU established a network of relations and co-operation have been devised and started to function, speaks of vital necessity to communicate on European democratic agenda continent wise. Moreover, it shows how much membership in two above mentioned organizations is interlinked. Since May 2007, a Memorandum of Understanding between the CoE and the EU provides a new framework for cooperation between the two organisations. It confirms the role of the Council of Europe as the benchmark for human rights, the rule of law and democracy in Europe, stipulates the need for coherence between the two Organisations’ legal norms in the fields of human rights and fundamental freedoms, and encourages the Council of Europe and the European Union to work together even more closely in the future.
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– Marija PEJČINOVIĆ BURIĆ –

According to the European Union’s Joint Action of 29 June 1998 establishing a mechanism for collective evaluation of the enactment, application and effective implementation by the applicant countries of the acquis of the European Union in the field of Justice and Home Affairs, the evaluation is be based, inter alia, on reports of the Council of Europe on the implementation of Council of Europe Conventions and recommendations, or by any other sources, which are deemed to be relevant with regard to the content of the acquis. In addition, the European Commission publishes a document, regularly up-dated, on the acquis of the European Union in the field of Justice, Freedom and Security, which contains references to the Council of Europe’s acts. However, in the globalized world of ours, when, due to the technologies which are developing almost on daily basis, the planet has shrunk to the size of our PC, when things hardly happen and we are instantaneously informed about them, regardless of where on Earth they did happen, when we are congested with information of all kinds and qualities, it is of prime importance to be able to set priorities and let go of redundancy. I say this because the same principle applies to work in many international organizations and institutions, European ones too. On everyday basis we can witness how much overlapping is going on in scope of work of a number of organisations. Someone would say that Council of Europe has performed its “mission” and “taught” many of its “students” to properly apply for “EU University”. Is it really so? CoE has been and is a promoter of European integration. Yes, it does cost money, but it is safe-guard of human rights and democracy all over the continent, which could be only too easily forgotten, especially when crisis of any kind strikes, and pragmatism decides to set priorities in a questionable way. We all have to change with time, so does CoE, but its honorable role, sometimes not appreciated enough, should be here to stay in the name of all its intellectual and benevolent powers engaged in presenting often visionary reports on many issues, based on the fundamental right of each of us to be free and dignified human being…

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341.176(4):341.231.14(497.6)

The Role of the Council of Europe in Promoting Democracy, Rule of Law and Respect for Human Rights: Case Study: Bosnia and Herzegovina
caroline RAVAUD
Since the early 90’s, Europe is going through a dynamic period of transition, with significant social and political changes. There has been huge, albeit uneven, progress on the path of establishing democratic institutions and market economies. The Cold War is over. But in this process, new threats to international security and stability have emerged. Major fighting took place in the late 1980’s and early 1990’s in various parts of Europe and although hostilities have all but ceased, no long-lasting solution has been reached between the parties concerned, despite sustained international efforts.

The break-up of former Yugoslavia
The break-up of the former Socialist Republic of Yugoslavia (SFRY) in the early 90’s has been particularly bloody. Only Slovenia and Macedonia, who declared independence from SFRY in June and September 1991 respectively, except for the Ten-Day (10 day) war in Slovenia, were not engulfed in the violence that spread in the countries of the SFRY, specially in Croatia after it declared independence in June 1991 and in Bosnia-Herzegovina, after its independence referendum in March 1992. Often described as Europe’s deadliest conflicts since World War II (WWII), the conflicts in the former SFRY have become infamous for the war crimes they involved, including mass ethnic cleansing. They were the first conflicts since World War II to be formally judged genocidal in character and many key individual participants were subsequently charged with war crimes by the International
Caroline Ravaud, Special Representative of the Secretary General of the Council of Europe in Bosnia and Herzegovina and former Head of the Secretariat of the Monitoring Committee of the Council of Europe Parliamentary Assembly.

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– caroline RAVAUD –

Criminal Tribunal for the former Yugoslavia (ICTY) established by the United Nations to prosecute these crimes. Today the disintegration process of the SFRY appears to be complete, with Montenegro gaining independence through a non-contested referendum in May 2006 and with the 17 February 2008 decision of the Provisional Institutions of Self-Government of Kosovo1 to unilaterally declare independence from Serbia held to be in conformity with international law by the International Court of Justice on 22 July 2010. To date, 70 States have recognised Kosovo as an independent State. Following the adoption on 9 September 2010 of a joint Serbia-European Union (EU) resolution on Kosovo by the United Nations General Assembly, EU-sponsored talks between Serbia and Kosovo on issues of mutual interest should start as soon as possible but will probably commence in earnest only after elections are held in Kosovo in February 2011, or even earlier, since the Kosovo government collapsed mid-October. Relations between the countries in the region have markedly improved, notably between Serbia, Croatia and Bosnia-Herzegovina, thanks in particular to the so-called trilateral meetings organised by the Turkish Minister of Foreign Affairs. On 30 March 2010 Serbia’s parliament, with a narrow majority, passed a resolution on Srebrenica, strongly condemning the crimes committed against the Bosnian Muslim population of Srebrenica in July 1995 and formally extending an apology to the families of the victims, because “not everything was done to prevent the tragedy”. On 5 October 2010, Serbia celebrated the 10th anniversary of its democratic renaissance after the downfall of Slobodan Milošević’s regime.

European perspective for the Western Balkans
All the countries in the wider region are determined to join the European Union (EU). Slovenia is a member already since May 2004, Croatia hopes to join in 2012, and Macedonia, Montenegro and Serbia officially applied for membership in 2005, 2008 and 2009 respectively. Bosnia and Herzegovina signed a Stabilisation and Association Agreement (SAA) with the EU in June 2008 and will benefit from visa free regime probably as of January 2011, together with Albania. The EU has repeatedly assured the countries in the Western Balkans that they would be welcome, once each of them meets the conditions for EU accession. But accession negotiations will be lengthy and
1

All references to Kosovo, whether to the territory, institutions or population, in this text shall be understood in full compliance with United Nations Security Council Resolution 1244 and without prejudice to the status of Kosovo.

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case Study: Bosnia and herzegovina

complicated. There is a certain amount of enlargement fatigue, as the EU has become more cautious after the accession of Romania and Bulgaria and favours stronger pre-accession conditionality. The entry into force of the Lisbon treaty also poses a number of internal and external challenges with regard to its implementation. Since the early 1990’s, 15 States 2 have joined the EU, bringing the total number of member States now to 27. In the same period, the Council of Europe’s (CoE) membership rose from 23 member States to 47, with Montenegro being the latest to accede in 2007. Both organisations have thus more than doubled the number of members within a period of just 10 years, with all current 27 members States of the EU also being members of the Council of Europe3. While the enlargement process of the Council of Europe is largely completed4, the European Union’s is not. Both organisations have faced tremendous challenges during this process, stretching not only their socalled absorption capability but also putting into question the very essence of their decision-making mechanisms and working methods. With the rapid ratification by the new members States of the European Convention of Human Rights (ECHR), the European Court of Human Rights (ECtHR) has been faced with such a massive increase of applications (around 130 000 are currently pending) that it had to significantly change its working methods. Still, despite an increase in manpower and budgetary resources, to the detriment of other departments of the CoE, it is bogged down to the point of endangering its flagship feature, the right of individual petition. With a budget of around 220 million Euros per year and a total staff (including around 800 in the ECtHR Court) of just 2 800 people, the Council of Europe has nevertheless managed to continue to provide “good value for money”, as the former Secretary General Catherine Lalumière once argued, to the 47 member States it serves, notwithstanding the zero growth policy imposed on it over the past few years.

2

3

4

Austria, Finland and Sweden in 1995, Cyprus, Czech Republic, Slovakia, Hungary, Poland, Slovenia, Lithuania, Latvia, Estonia and Malta in 2004 and Romania and Bulgaria in 2007. The 20 CoE member States which are not at the same time members of the EU are, in chronological order of accession: Norway (1949), Turkey and Iceland (1950), Switzerland (1963), Liechtenstein (1978), San Marino (1988), Andorra (1994), Albania, Macedonia, Ukraine and Moldova (1995), the Russian Federation and Croatia (1996), Georgia (1999), Armenia and Azerbaijan (2001), BosniaHerzegovina (2002), Serbia (2003), Monaco (2004) and Montenegro (2007). The only States likely to join the CoE in the future should they so wish are Belarus, Kazakhstan, Kosovo and the Vatican. Enlargement to Central Asia is not foreseen.

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– caroline RAVAUD –

The role of the Council of Europe in promoting democracy, rule of law and respect for human Rights in the wider Europe
The Council of Europe is the oldest pan-European organisation, set up in London in 1949. Its Statute provides that every member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms. Any European State will only be invited to become a member of the Council of Europe if it is deemed to “be able and willing” to fulfill these conditions. The conditions for accession are spelt out in detail by the CoE Parliamentary Assembly, which must give an Opinion on accession to the CoE Committee of Ministers. Since 1993, the Parliamentary Assembly has also set up a monitoring mechanism to check on the new member States’ progress in fulfilling their accession commitments and obligation towards the Council of Europe5. The same accession criteria6 were subsequently adopted also by the EU: according to the Declaration of the June 1993 European Council in Copenhagen, membership criteria require that the candidate country “must have achieved stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities”7. It has thus often been stated that membership in the CoE is a pre-requisite for future EU accession, helping candidates states to fulfill the Copenhagen criteria with regard to democracy, rule of law and respect for human rights. One often hears that the CoE is a “school of democracy”, the “European Human Rights watchdog” or the “anti-chamber to the European Union”. It is certainly all of this, but much more than that, notably because its remit is much wider than that of the EU. Almost all the Council of Europe treaties are open to States which are not members of the Organisation. To date, 26 non-member States, mainly American and African (for example the United States of America, Costa Rica, South Africa or Senegal), have signed and/or ratified Council of Europe treaties in the fields of legal co-operation in criminal matters, environment, culture, education or sports. The Venice Commission, one of the most famous expert bodies of the CoE in the field of constitutional law and legal reforms, counts 57 member States – the 47 member States of the Council of Europe plus Algeria, Brazil, Chile, Israel,
5

6

7

Post-accession “so-called verification mechanisms” were set up by the EU European Union only in 2007, after accession of Bulgaria and Romania. The so-called Copenhagen criteria also require that a candidate country has a functioning market economy as well as the capacity to cope with competitive pressure and market forces within the EU.. Union. The protection of minorities is not mentioned in the CoE 1949 Statute because the first international instrument in this field, the CoE Framework Convention for the protection of national minorities, was adopted only in 1995.

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case Study: Bosnia and herzegovina

Kyrgyzstan, the Republic of Korea, Mexico, Morocco, Peru and Tunisia8 as full members, which also contribute to the budget. Belarus is an associate member and there are seven observers (Argentina, Canada, the Holy See, Japan, Kazakhstan, the United States and Uruguay). South Africa and the Palestinian National Authority have a special co-operation status similar to that of the observers. The Council of Europe’s most famous achievement is the 1950 European Convention on Human Rights, which created the European Court of Human Rights in Strasbourg, the first judicial mechanism for protecting individual human rights ever to be set up. But human rights are also protected through the 1961 European Social Charter, the 1987 European Convention for the Prevention of Torture, the 2005 Convention on Action against Trafficking in Human Beings, the 1961 European Social Charter, the 1992 European Charter for Regional or Minority Languages, or the 1995 Framework Convention for the Protection of National Minorities or the 2005 Convention on Action against Trafficking in Human Beings. All these Conventions have monitoring mechanisms and review the situation in member States on a regular basis. Protection of the rule of law and fostering legal co-operation is ensured through such ground-breaking instruments such as the 1985 European Charter of local self-government, the 1997 Convention on Human Rights and Biomedicine, the 1999 Conventions against Corruption and Organised Crime, the 2001 Convention on Cybercrime, the 2005 Convention on the Prevention of Terrorism, the 1999 Conventions against Corruption and Organised Crime, the 2005 Convention on Action against Trafficking in Human Beings or, the 2005 Convention on laundering, search, seizure and confiscation of the proceeds from crime and on the financing of terrorism or the 1997 Convention on Human Rights and Biomedicine. Promotion of cultural co-operation and diversity is ensured under the Council of Europe’s Cultural Convention of 1954 and several conventions on the protection of cultural heritage as well as through its Centre for Modern Languages in Graz, Austria and its North-South Centre in Lisbon, Portugal. There are several conventions on the recognition of university studies and diplomas (Bologna Process and Lisbon Recognition Convention). Promotion of fair sport is dealt with through the 1989 Anti-Doping Convention and the 1985 Convention against Spectator Violence. European youth exchanges and co-operation are organised through the European Youth Centres in Strasbourg and Budapest and, last but not least, the quality of medicines throughout Europe is guaranteed by the European Directorate for the Quality of Medicines and its 1964 European Pharmacopeia.
8

According to the revised statute of the Commission, adopted in February 2002, non-member states of the Council of Europe can become full members. Therefore it is no longer possible for states to join the Venice Commission as associate members or observers. The previously granted status as associate member or observer however is maintained.

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– caroline RAVAUD –

Every new member State of the Council of Europe will not only be monitored with regard to the fulfilment of its accession commitments9, but will also have to adapt its legislation and practice to the common European standards defined in the CoE Conventions it has accepted to ratify. It will also have the possibility to contribute to the definition of new standards required by the emergence of new challenges to the European public order or societal evolutions by participating, on an equal footing with all other member States, in the inter-governmental work carried out in the Council of Europe. Connecting people, networking and exchanging experiences and best practices is an essential part of the soft power exercised by the Organisation, which is often underestimated.

Bosnia-Herzegovina’s membership in the Council of Europe: Achievements and challenges
Bosnia-Herzegovina (BiH) applied for Special Guest status with the Parliamentary Assembly on 5 May 1992, a few months after having declared independence from the SFRY. This was granted on 28 January 1994, while the war was still raging in the country. Its application for membership of the Council of Europe was deposited in April 1995, months before the Dayton Peace Accords brought an end to the violence, in December 1995. But it was only in January 1999 that the Committee of Ministers forwarded this application to the Parliamentary Assembly for opinion. It took the Assembly another 3 years to adopt its Opinion in January 2002, setting out a long list of commitments to be fulfilled by the authorities. Bosnia-Herzegovina finally became a member of the Organisation in April 2002. The accession process thus lasted almost 10 years. The Parliamentary Assembly observed all the elections held in the country as from 1996, lastly on 3 October 2010, while the CoE Congress of Local and Regional Authorities observed municipal elections, lastly in October 2008. A CoE office was opened in BiH Bosnia-Herzegovina already in 1996. What were the reasons for this long accession process? Clearly, a membership application by a country recently emerging from one of the bloodiest conflicts since WWII posed significant problems. How to ensure democracy, rule of law and respect for Human Rights in a State where 30 000 people went missing, half the
9

There are currently 10 countries under a monitoring procedure of the PACE Monitoring Committee: Russia, Ukraine, Moldova, Azerbaijan, Georgia, Armenia, Albania, Serbia, Montenegro and BosniaHerzegovina. Turkey, Macedonia, Bulgaria and Monaco are still engaged in a post-monitoring dialogue with the Assembly. Having expressed its satisfaction with the outcome of the post-monitoring dialogue, the Monitoring Committee decided to conclude the post-monitoring dialogue with Estonia, Lithuania, Romania, Croatia, the Czech Republic, Slovakia and Latvia (in January 2001, January 2002, May 2002, September 2003, October 2004 and December 2005 for Slovakia and Latvia respectively).

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case Study: Bosnia and herzegovina

population was internally displaced or fled abroad, over 100 000 people were killed and two-thirds of all existing housing and most of the infrastructure were destroyed? Moreover, the Dayton Peace Accords, while recognising the existence of BiH as a State under international law, divided the country into two Entities, Republika Srpska and the Federation of Bosnia-Herzegovina (itself sub-divided into ten cantons in accordance with the 1994 Washington Agreement), with most competences devolved to the Entity and cantonal level, and a very weak central State. The Constitution of Bosnia-Herzegovina appears as Annex IV to the Dayton Peace Treaty and provides for a very complex and unwieldy decision making process, which aims to ensure that the three 3 so-called Constituent Peoples (Croats, Serbs and Bosniaks) cannot outvote each other and that all decisions are taken by consensus. Finally, the role of the High Representative, responsible under Annex X for monitoring the implementation of the civilian aspects of the peace agreement, who was granted extraordinary powers in 1997, such as imposing laws or removing any official deemed to be obstructing the implementation of Dayton, plus the international peace keeping forces present in the country, have raised doubts as to the capacity of the State to govern itself without outside support or even direct interference. Representation in the various State, Entity or cantonal institutions must globally follow the 1991 pre-war census for the repartition of posts between the three (3) constituent peoples, to the detriment of what the Constitution calls “Others”, i.e. members of the seventeen recognised minorities and all those not wishing to declare themselves as being Croat, Bosniak or Serb. The power-sharing mechanisms provided for in Dayton have since 1995 been further refined to the extent that many commentators now speak not of democracy, but “ethnocracy”. To date, Bosnia-Herzegovina has not managed to adopt a State-level law10 which would allow for the organisation of a new census in 2011. The failure to adopt the census law will considerably hamper Bosnia-Herzegovina’s progress towards European integration because the EU needs reliable statistics to tailor its assistance to the needs on the ground. Unfortunately, the recent general elections on 3 October 2010, while evidencing growing support for the only multi-ethnic party, the SDP, have again been contested on purely ethnic lines. A parliamentary majority will only be found through coalitions of ethno-nationalist parties. Given its current constitution, there is no escape for Bosnia-Herzegovina from ethnic nationalism. It can only be hoped that the new authorities will end the bickering and obstruction that led to the political stalemate and slowing down of reforms of the last four years. The
10

The draft law is currently blocked in the House of Peoples because the Serb caucus opposes a provision inserted by the Bosniaks, according to which the census results would be used for political power sharing purposes only after full implementation of Annex VII to the Dayton Peace Accords on refugee return.

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key to progress is trust, a sense of common good and willingness to compromise on difficult issues in the wider ranging interest of the country as a whole: BosniaHerzegovina is not there yet. Bosnia-Herzegovina, in 1995 with the Dayton Peace Accords, and Macedonia, in 2001 with the Ohrid Agreement, both agreed to inter-ethnic peace settlements as the basis for their internal stability and constitutional order. But these settlements represent two opposing views on inter-ethnic post-conflict state-building: Bosnia’s Dayton Agreement is very rigid and based on a mainly territorial separation of ethnic groups into federal entities, while Macedonia’s Ohrid Agreement relies on institutional inter-ethnic integration and accommodation in a unitary state. The performance of the two models in the past 10 years proved relatively advantageous for Macedonia as the lack of a cumbersome federal structure allowed it to make important progress towards Euro-Atlantic integration, while maintaining, at least so far, the consensus necessary to keep the loose and flexible structure of the Ohrid Agreement operational. The accession to the Council of Europe has undoubtedly anchored BosniaHerzegovina in the European family to which it belongs, not only geographically, but historically and culturally. But membership in the CoE is not only ticking a box on the road to further Euro-Atlantic integration, it entails duties and obligations. Ratifying Conventions is easy, implementing them in a satisfactory way is much more difficult.

The urgent need for constitutional reform
Bosnia-Herzegovina has ratified 76 of the over 200 CoE Conventions11. All major human rights or minority protection mechanisms are among them. To date, the European Court of Human Rights has delivered fourteen judgments against Bosnia-Herzegovina, touching upon such sensitive issues as inter-ethnic violence in prisons, non-reimbursement of foreign currency savings, payment of war damages, restitution of military flats owned by former Yugoslav National Army (JNA) personnel, inter-Entity discrimination with regard to pension benefits, and, most importantly, the constitutional discrimination preventing citizens who do not declare themselves as being Croat, Bosniak or Serb from standing for election to the tripartite, rotating Presidency of the State and to the House of Peoples (see ECtHR judgment of 22 December 2009 in the case of “Sejdić and Finci”, brought respectively by members of the Roma and Jewish communities). Unfortunately, despite repeated calls of the Council of Europe, but also from the wider international community, the authorities in BiH failed to adopt
11

7 further treaties were signed but not yet ratified.

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constitutional amendments and subsequent changes to the electoral law before the October 2010 elections. These were held to be globally free and fair by the international observers, including PACE, but were nonetheless held under a fundamentally flawed system that is a violation of the ECHR. According to Article 46 ECHR, Bosnia-Herzegovina is under a legal and binding obligation to execute this judgment, under the supervision of the CoE Committee of Ministers. This problem will therefore need to be addressed by the new authorities as a matter of urgency in the forthcoming period, notably because failure to implement the “Sejdić and Finci” judgment will negatively impact on Bosnia-Herzegovina’s further prospects of European integration: it will be found in violation of the SAA (only two ratifications by member States are outstanding) and the granting of candidate status will most likely be delayed. The role of the Council of Europe with regard to constitutional reform is perhaps one of its major contributions to the development and entrenchment of democracy, rule of law and human rights in Bosnia-Herzegovina. The Parliamentary Assembly stressed already in its 2002 accession opinion12 that “the state institutions should be strengthened at the expense of the institutions at Entity level, if need be by a revision of the Constitution” and noted that ”BiH committed itself to “review within one year, with the assistance of the Venice Commission, the electoral legislation in the light of Council of Europe standards, and to revise it where necessary”. Thereafter, the Assembly periodically called upon the authorities of Bosnia and Herzegovina to implement a constitutional reform, in order to achieve two key objectives: firstly, to review the electoral arrangements in order to “end the constitutional discrimination of all those not belonging to one of the three constituent peoples”. Secondly, the Assembly has been stressing that the functioning of state institutions must be improved in order to “create a modern and functional state”13. In a separate Resolution14, also adopted on 23 June 2004, the Assembly decided to ask the Venice Commission to make a comprehensive assessment of the conformity of the Constitution of Bosnia and Herzegovina with the ECHR and the European Charter of Local Self-Government, as well as of the efficiency and rationality of the present constitutional and legal arrangements in Bosnia and Herzegovina. The Venice Commission is thus the only body in Europe so far who has produced an authoritative analysis of the constitutional set-up in BiH, including the powers of the High Representative, and its Opinions are widely quoted15.
12 13 14 15

See Assembly Opinion 234(2002). See Assembly Resolution 1383(2004) of 23 June 2004, para. 3 and 8. See Assembly Resolution 1384(2004) of 23 June 2004, para. 13. See in particular CDL-AD(2005)004, Opinion on the Constitutional Situation in Bosnia and Herzegovina and the Powers of the High Representative adopted by the Venice Commission at its 62nd plenary session (Venice, 11-12 March 2005) and CDL-AD(2006)004, Opinion on Different

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After the failure, in April 2006, by just two votes, of the so-called “April package” of constitutional amendments, the Assembly held an urgent debate on constitutional reform16 in June 2006, addressing a number of concrete recommendations to the authorities. The key Assembly demands focused on adopting a new constitution17, by October 2010 at the latest, in order to: “replace mechanisms of ethnic representation by representation based on the civic principle, notably by ending the constitutional discrimination against ‘Others’, “find efficient and rational decision-making procedures that are not sacrificed to the principle of involving representatives of each constituent people in any decision”, and “review the territorial organisation of the state and its division into entities, cantons and municipalities and the repartition of competences between the state and the lower levels with a view to increasing efficiency and sustainability”. These demands were reiterated, to no avail, in September 2008, January 2010 and lastly, during an urgent debate18 in April 2010. On this occasion, the Assembly urged the authorities of Bosnia and Herzegovina to lose no time and launch, before the general elections of October 2010, a serious institutionalised process for the preparation of a comprehensive package of constitutional amendments, in accordance with the country’s post-accession commitments, while making full use of the expertise and recommendations of the Venice Commission). This institutionalised process, based on a clear political mandate, should seek to involve a broad range of domestic legal experts, in order to make a comprehensive analysis of all existing proposals and produce a package of concrete amendments which could generate consensus among the key political stakeholders. Appropriate consultations with civil society should also be conducted in due course. This process should continue after the elections and the formation of new authorities which should make the implementation of the country’s remaining post-accession commitments, including the constitutional reform, their political priority. A serious institutionalised and domestic constitutional reform process is all the more necessary because experience has shown that some political leaders in the country resist any attempt by the wider international community to do their job for them. The so-called Butmir talks on constitutional reform held towards the end of 2009 under the auspices of the EU and the US, which aimed at building
16 17

18

Proposals for the Election of the Presidency of Bosnia and Herzegovina endorsed by the Commission at its 66th plenary session (Venice, 17-18 March 2006). See Assembly Resolution 1513(2006). Independently of its role of supervision of the execution of the ECtHR’s Court’s judgments, fulfillment of BiH commitments and obligations to the CoE is also monitored at political level by the Committee of Ministers (CM). In the context of the CM’s monitoring reports, issued twice a year since accession in 2002, the CM constantly “underlined the importance of bringing the Constitution of Bosnia and Herzegovina, as soon as possible, in line with the European Convention of Human Rights and urged the political actors to renew without further delay dialogue on the constitutional reform”. See Assembly Resolution 1725(2010).

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on the 2006 April package and offering a number of solutions to put an end to the constitutional deadlock, unfortunately produced no concrete results. It remains to be seen whether the domestic political leaders will find the courage and the strength in the forthcoming period to come up on their own with constitutional amendments. Addressing the “Sejdic and Finci” problem should be their top priority, but many other constitutional amendments will be needed in the future to enable BiH Bosnia-Herzegovina one day to join the EU.

The role of the Venice Commission
The Venice Commission has been a major player in the development of democracy, rule of law and respect for human rights: to date, it has adopted 46 opinions on Bosnia-Herzegovina, of which 23 were adopted between 1996 and BiH’s accession to the Council of Europe in 2002. Thirteen Opinions dealt with constitutional issues, at State level and Entity level. At the request of the BiH Constitutional Court, the Venice Commission adopted as recently as 15 October 2010 an amicus brief on the constitutionality of the Statute of the divided city of Mostar, which had been imposed by the High Representative in 2004. Its ten Opinions on the Ombudsman institutions in BiH Bosnia-Herzegovina were a significant assistance to the authorities as they struggled to implement their accession commitment of “establishing, in the long term, a single, unified human rights ombudsman’s office at State level19, which would include the present ombudsman institutions at Entities level”. Finally, the assistance of the Venice Commission in electoral matters was important: eight Opinions, including on the draft laws on conflict of interest and political party financing, provided guidance to the authorities.20 The Venice Commission has also dealt with the lack of accountability of international institutions in Bosnia-Herzegovina, specifically with the power of the High Representative to remove officials from office, including elected ones and judges, without any possibility of appeal. In 2004, it recommended to create a review mechanism for the police officers who were decertified by the UN International Police Task Force, without any reasoning and without any possibility of appeal. This problem was also dealt with by the CoE Commissioner of Human

19

20

The merger became effective end of 2009. Previously, the country had 3 Ombudsman institutions, each with 3 Ombudsman, one from each constituent people. In accordance with the Dayton Peace Accords, elections were administered and organised by the OSCE between 1996 and 2008. The municipal elections in 2008 were the first to be managed under the sole responsibility of the BiH Central Election Commission, whose professionalism has been praised by ODIHR and international election observers during the last elections in October 2010.

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Rights in a special report21 published in January 2007 following which a partial solution was found.

Compliance monitoring
Having ratified all major CoE Conventions, BiH Bosnia-Herzegovina is now under an obligation to implement the standards it has adhered to: this implies sending state reports to the various monitoring bodies, hosting fact-finding missions and, most importantly, acting upon the recommendations made. The Committee for the Prevention of Torture (CPT), for example, visited the country four4 times since 2003, and its recommendations and findings were implemented to a large extent, although serious problems remain in a certain number of penitentiary institutions. All reports of the CPT were made public by the authorities. The Advisory Committee supervising implementation of the Framework Convention on national minorities adopted its first report on BiH on 27 May 2004 and the second one on 9 October 2008. It noted that Bosnia-Herzegovina had taken a number of measures to advance the implementation of the Framework Convention. Legislation on the protection of persons belonging to national minorities was adopted by the Federation and Republika Srpska and consultative bodies for national minorities were set up in Republika Srpska and at the state level. Persons belonging to national minorities continue however to be included in the category of “Others”, do not enjoy the same political rights as those belonging to the three constituent peoples and remain on the sidelines of public affairs. Commendable Action Plans for Roma housing, health and employment were devised with a view to advancing the implementation of the 2005 National Strategy for Roma. The Committee held that it is crucial that they are implemented without further delay as many Roma continue to face serious difficulties in the field of education, employment, housing and access to health care. Moreover, their possibilities to participate in decision-making processes are very limited. In the field of education, there is a most worrying trend towards increased segregation of pupils along ethnic lines. The European Commission against racism and intolerance published its first report on BiH in 2005 and the next one will be issued end of 2010. The CoE’s GRECO (Group of European States against Corruption) adopted its Second Round Evaluation Report on Bosnia and Herzegovina on 8 December 2006. This report was made public by GRECO, following authorisation by the authorities of Bosnia and Herzegovina, on 31 January 2007 and a compliance report was
21

The Commissioner issued a regular report on the situation of Human Rights in BiH in February 2008. He will carry out a follow-up visit in November 2010.

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issued in February 2009. Of the 16 recommendations addressed to Bosnia and Herzegovina in 2006, the authorities had fully or partially implemented only 25%. This is one of the lowest compliance level in the region. One of the major GRECO recommendation, setting up an anti-corruption agency at State level, has, however, been recently implemented, notably because the EU made it one of the conditions for visa liberalisation. In January 2010, the CoE’s Europe’s MONEYVAL Committee (Committee of Experts on the Evaluation of Anti-Money Laundering Measures and the Financing of Terrorism (MONEYVAL) published its third round evaluation report on Bosnia and Herzegovina. The report analysed the implementation of international and European standards to combat money laundering and terrorist financing, assessed levels of compliance with the Financial Action Task Force (FATF) 40+9 Recommendations and included a recommended action plan to improve the anti-money laundering (AML) and combating the financing of terrorism (CFT) system of Bosnia and Herzegovina. It found that there had been a number of improvements since MONEYVAL´s first report following the first on-site visit in November 2003. In 2004 a unified AML/CFT law was enacted at state level which replaced separate laws for the entities and Brčko District. This law was supplemented by the issuance of comprehensive guidance by the Minister of Security. The 2004 AML law was superseded, in June 2009, by another AML/ CFT law, the Law on the Prevention of Money Laundering and Financing of Terrorist Activities. This new law has addressed a number of deficiencies in the old law, including the introduction of a risk based approach and an improvement in preventive measures. The monitoring exercise of the Congress of Local and Regional authorities provides an important basis on which to enter into a constructive political dialogue with the authorities of member states in connection with local and regional democracy issues and on how the European Charter of Local Self-Government is being implemented. Reports on the state of local and regional democracy were adopted in 2000 (as part of the accession procedure), in 2001 and 2006. The next one will be issued in 2011. Finally, as Bosnia-Herzegovina has ratified22 the Revised European Social Charter only in October 2008, its first State report is due to be submitted only in October 2010. Bosnia and Herzegovina was among the first States to ratify the Convention on action against trafficking of human beings, thus allowing for its entry into force in February 2008. Bosnia-Herzegovina is part of the second group of States to be evaluated by GRETA (Group of Experts on Action against Trafficking) and will be sent a questionnaire to this effect in February 2011, with replies to be sent in September 2011.
22

It has not signed the Additional Protocol Providing for a System of Collective Complaints.

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– caroline RAVAUD –

All the monitoring reports mentioned above are not just another piece or paper or critical reports issued by yet another think tank or NGO. They are based on dialogue, co-operation and, in many cases, peer review, and provide expert advice and recommendations. It is up to the country concerned to make the best use of these recommendations. If it doesn’t, there are no immediate sanctions, but concerns will be raised publicly. It is also worth recalling that findings of CoE bodies, because they are concrete and often technical, enjoy a high international standing: they are being widely quoted, not only in the progress reports of the European Commission, but also in the country reports of the US Department of State, for example. Co-operation with the authorities in BiH, at all levels, has always been excellent, even if implementation has in some cases been slow and uneven.

Providing assistance to Bosnia-Herzegovina
Monitoring compliance with either original commitments or obligations deriving from the ratification of CoE instruments is good but not enough. With its limited budgetary means, the CoE has tried over the past eight years since Bosnia-Herzegovina (BiH) became a member, to provide the country with support and assistance to develop its institutions, legal system and civil society, in order to enable it to face the challenges of 21st century Europe. Co-operation and assistance programmes have dealt over the years with local self-governance, electoral assistance23, support to the Ombudsman institutions and the government agent before the ECtHR, cultural heritage, social security, training of judges, prosecutors, lawyers and journalists, providing legislative expertise on various laws, prison reform (including a 19,3 million Euros loan by the CoE Bank for the construction of a State prison), education to democratic citizenship, history teaching and higher education. It is of course not the only international organisation active in BiH, but the authorities have particularly valued the non-intrusive, focused and concrete expert assistance provided by the CoE over the years. Since 2003, the CoE is for example the lead organisation with regard to prison reform in Bosnia-Herzegovina. Its latest joint project with the EU underway since 2007 aims at improving the management of prisons, the treatment of prisoners and their conditions of detention, in accordance with the European standards to which the country is a party as a member of the CoE. The principal means employed are professional capacity-building targeting management and operational level staff. The project addresses general training needs and national training capacities, and devises specialised programmes for the treatment of prisoners with particular
23

For the 2010 elections, the CoE has implemented a pre-election assistance programme worth more than 500 000 €, notably thanks to voluntary contributions from other member States.

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needs and mechanisms for remedying any shortcomings through complaints, inspections and monitoring procedures. In parallel with the capacity-building objectives, the project seeks to strengthen the structural and organisational side through support for the development of effective operational practices within the Prison Administrations. Developing a coherent understanding of European standards, as contained in the revised European Prison Rules and other relevant Recommendations of the CoE, the standards developed by the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (CPT) in the substantive sections of its annual general reports as well as in the reports on its visits to BiH, and the case-law of the European Court of Human Rights (ECtHR), will support a reliable and functioning prison system throughout the fifteen prisons that exist in the country. Another joint project of the European Commission and the Council of Europe, ‘Strengthening Higher Education in Bosnia and Herzegovina III’ is the third joint project in a row since 2003 that assists Bosnia and Herzegovina with the implementation of Bologna compatible reforms in higher education. This project lasts until 2011 and focuses on the implementation of four of the seven key strategies and guidelines to implement the Bologna Process in BiH. These were jointly developed under the previous project, SHE II (2006-2008) and adopted by the BiH Council of Ministers in December 2007. The project assists the Agency for the Development of Higher Education and Quality Assurance (HEA) and BiH universities in preparing the first external evaluation of BiH universities, in line with BiH and European Standards and Guidelines for Quality Assurance and roadmap for their implementation. This component involves a number of international experts from the European Network for Quality Assurance (ENQA) to assist the HEA with drafting the corresponding procedures and criteria and to prepare and carry out the actual external evaluation. The second component of the project will assist with the implementation of the ‘Framework for Higher Education Qualifications in BiH’. This component is implemented in close cooperation with BiH universities and the Rectors Conference and should develop a constructive and mid-term approach towards integrating the new Bologna degrees and the existing BiH parameters for education, employment and social security. Both components are accompanied by a review of corresponding legislation and a review of existing and needed expertise in higher education reform in BiH, in order to recommend strategic steps for further progress; informed by European developments but based on domestic expertise and priorities. Finally Bosnia-Herzegovina is also part of a number of regional projects in the field of rehabilitation of cultural heritage, social security reform and social
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– caroline RAVAUD –

security coordination, Prosecutors’ cooperation in the countries of South-East Europe, or SEE fight against cybercrime. In order to assist Bosnia-Herzegovina in implementing its accession commitments and obligations, the CoE could certainly do much more but its capacity is unfortunately constrained by budgetary limitations and BosniaHerzegovina is not the only member State of the CoE that needs help. Globally, however, the assistance offered by the CoE has certainly contributed to the progress made by BiH in its eight years of membership.

Education: a promise for a better future
Bosnia-Herzegovina had a rich tradition of multi-ethnic co-existence before the war but since 1995, divisions in the educational system24 have become entrenched, despite the adoption of the 2003 Law on primary and secondary education: segregated classrooms and teaching history, religion, language and culture separately for each “constituent” people will put the future of the country at risk. Children of the three main ethnic groups barely meet, sometimes they are sharing a common school building but attend classes in separate shifts, with 2 separate school administrations (the meanwhile infamous “two schools under one roof ”). The only exception to this segregation occurred under U.S. supervision in Brčko District25. Despite the hard work of the CoE, OSCE, UNICEF and many other organisations, it has so far not been possible to keep politics out of the class rooms. To maintain and continue reform in the field of education and to eliminate all aspects of segregation and discrimination based upon ethnic origins was however an accession commitment. It was the first time ever that the Parliamentary Assembly included a specific commitment on education, probably because it was aware that education is a cornerstone of social cohesion and the best guarantee of reconciliation. It remains, alas, unfulfilled There is however a particular project of the Council of Europe which has raised hopes, in particular with regard to the capacity of domestic stakeholders to take the future in their own hands, despite the difficult political environment:
24

25

The education system is not only segregated along ethnic lines, it is also of low quality: results of the international testing of students TIMSS 2007 (Trends in International Mathematics and Science Study) show that BiH is the lowest ranking in the region and far below international average: as many as 25% of the students do not reach the basic knowledge threshold level and 91% of teachers have no university education. According to the European Training Foundation, only 6% of the population has benefited from tertiary education. As demonstrated in Charles Ingrao’s landmark book “Confronting the Yugoslav Controversies”, it is possible to develop common narratives, or at least parallel narratives that lay the foundation for better understanding.

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the Democratic Citizenship and Human Rights Education, which is currently in its third phase, started in 1997… in Bosnia-Herzegovina. In a period of just over 13 years, the CoE has adopted reference texts, developed political frameworks, supported networks and forums and produced high quality materials in the area of citizenship and human rights education, the underlying idea being that by promoting democracy and human rights early on in schools, human rights abuses could be prevented. The culmination of this work has been the adoption in May 2010 by all 47 member States of the CoE Charter on education for democratic citizenship (EDC) and human rights education. At the origin of this project was the partnership that, along with other partners, the Council of Europe developed since 1997 with dedicated teachers, school directors and teacher trainers from all over BiH and which resulted in the production of high quality teaching manuals for use in primary and secondary schools. These manuals include lesson plans for all levels of education, with a view to promoting active citizenship based upon participatory and task-based learning in a democratic school community. They are used today in all schools in BosniaHerzegovina and have since been adapted, after de-contextualising them, for use in all schools throughout Europe. On 21 October 2010 in Sarajevo, on the occasion of the 8th South East Europe Networking conference on EDC and HR, the Council of Europe thus launched six manuals26 for teachers to promote education for democratic citizenship and human rights. The authors and editors of the final version of the manuals come from many European countries, and the manuals themselves have been tested and revised by a large number of people of different origins and sensitivities. Society in BiH Bosnia-Herzegovina will not be respectful of human rights and democracy if its children do not learn to value tolerance, respect for each other and diversity. No one is born with the knowledge of human rights and democracy; it must be learned and practised. The work carried out by the Council of Europe in this field is perhaps its most significant contribution to the promotion of democracy, rule of law and human rights in Bosnia-Herzegovina.

26

The six manuals were published in partnership with the Zürich University of Teacher Education, International Projects in Education. The Swiss Agency for Development and Co-operation co-funded the manuals with the Council of Europe.

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341.176(4).077-027.1

Lessons (to Be) Learned: The Council of Europe and the Road Ahead
On Reinventing the Purpose of Being and Reforming the Administration of the Council of Europe Darko ANGELOV
The author of this text has had the privilege to work for the Council of Europe for almost five years. The time spent left me with an invaluable insight into the operation of Europe’s oldest organization, as the Council proudly, and rightly, labels itself. It is not only age that matters when one talks of the Strasbourg-based organization, but very much substance that is at the core of its potential to be a key player on the global stage. In the early 1990s, with the democratic change in the former communist countries of Central and Eastern Europe, an unprecedented opportunity arose for the Council of Europe to welcome those countries in the club, thus imposing the immensely rich legal portfolio of the organization dealing with such a wide array of expertise from language and minority rights to the combating of corruption and money laundering. The attraction of those standardsetting documents, to which Council of Europe members adhere to, was an appeal that brought all of the former Communist block countries to eventually join the organization. To many of those new members, meeting the criteria for membership of the Council of Europe, crucially such as being a functional democracy, was the precursor for the lengthy path ahead towards joining the European Union. The wealth of its legal foundations and width of its membership was and remains to be the biggest asset of the Council. Of course, the end of the bipolar world also meant a necessity for an overall reorganization of the entire global multilateral setting. This drew the Council of Europe, or arguably, more it meant other organizations drawing them, closer or even to the brink of an overlap of competencies. One organization was at the forefront of venturing into ‘Council of Europe territory’, when it comes to the expansion of its scope of operation,

Darko Angelov, Ambassador of the Republic of Macedonia to Hungary and Nigeria, resident in Budapest. The views expressed are solely that of the author.

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– Darko ANGELOV –

namely the Organization for Security and Cooperation in Europe (the OSCE). The OSCE, or initially the Conference of the same name, was a process, later institutionalized, out of the Helsinki Accords, which were a landmark document mapping human rights at the core of the international equilibrium, to which, then remarkably for the first time the Soviet Union also signed up to, which eventually led to its demise. However, when the Conference received its institutional form through the Organization for Security and Cooperation, the Vienna-based entity was originally regarded as to mostly deal with the ‘hard power’ aspect of the east-west relationship, whilst the Council of Europe remained the sole European organization that not only had the wealth of detailed standard-setting conventions and similar legal framework documents, but also it had developed a pool of experts, expertise, and case-law (through its European Court of Human Rights) in all the variety of competences that the organization has under its umbrella. Before I continue drawing the brief Council of Europe – OSCE parallel, for the record, I ought to make it clear that this organization as well had made its groundbreaking contributions to the wellbeing of international order, the Helsinki process first coming to mind (but not exhausting the lengthy list), and humbled I was for having had the opportunity to work for that organization as well. In this very same journal back in 2007 I advocated for a resolute change in the multilateral setup of the pan-European and transatlantic organizations, such as NATO, the OSCE, and the Council of Europe, by having each of the three, with their own specific added values, knitted in an array of consultation and decisionmaking mechanisms. I will now not revisit the details of the proposal, however, I remain firmly behind the rationale that in order to bring Europe, and the world for that matter, into the new dawn of prosperity and political stability we should not reinvent the wheel, but we ought to use the best and scrap the superfluous from the existing intergovernmental organizations and then tie them all in into an intertwined multilateral network. However, three years later, we are still far from having done the scrapping of the rogue and advocating the best of what we all have within the existing system of intergovernmental governance. On the side of NATO, and even the OSCE, things do not seem desperately discouraging for at the least the reform process for those two organizations has been rolled out. For NATO, this will become clearer if the planned reforms will bode well for the future of that organization once we see the details of the Alliances` new Strategic Concept, an analysis coached by former US Secretary of State Madeleine Albright, to be presented at the forthcoming Lisbon Summit in November. As per the OSCE, the upcoming Heads of State Summit in Kazakhstan in December (the first such summit in eleven years) should provide us with a clearer picture on where, and if, the so-called Corfu Process is leading the organization towards adaptation and modernization. It will be interesting to see
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Lessons (to Be) Learned: The council of Europe and the Road Ahead

the evolution of the Russian ideas for the future role of the OSCE as proposed by President Medvedev in 2009 through his concept for a European Security Treaty.

Losing ground to ‘contenders’: The case of election monitoring
Going back to the leitmotif of this writing, of the current standing of the Council of Europe, we ought to identify two of the biggest missed opportunities for the organization that would have put it at a much higher footing than its existing one. The first missed opportunity for the Council of Europe and the initial, and by many, heaviest blow to its mandate, at the most crucial of times in 1990, came from the OSCE and the decision for the establishment of OSCE’s Office for Free Elections, later transformed into the Office for Democratic Institutions and Human Rights (ODIHR) in Warsaw, with the primary task of monitoring and providing analysis and expertise on election-related matters in the newly (re)established democracies of Europe. The rationale behind the decision for not endorsing the Council of Europe as the primary watchdog for elections in Europe laid in that the United States were not a member of the Council (only an observer) and Russia, at the time, was still not a member. Logically, the absence of the membership of the two great powers could have and should have been, on the contrary, the main impetus for the Council seeing it as a more ‘appealing’ monitor of everything to do with elections-monitoring in Central and Eastern Europe. The Council’s proven record of expertise and experience in the field of elections became derogated to making the Strasbourg monitors as auxiliary assistants to the often massive OSCE/ODIHR-led election monitoring missions to the countries of the former Communist bloc. This not only meant the Council of Europe missing on a lot of ‘marketing’ potential, as the election monitoring missions are politically a very influential affair (for both the host country and for the broader regional and international politics), but also it meant a lost opportunity to give the Council a significant political clout in the 1990s when elections drove the geopolitical agenda of the time. Hence, a sluggish bureaucracy as the Council slowly developed to be, was ill-prepared to adapt to the new challenges and opportunities. The OSCE, as a younger organization was less bound by a bulky and strong secretariat at its headquarters, thus it was more dynamic to seize the day of the 1990s new opportunities in the CEE region. Council of Europe’s tradition of having a strong secretariat at its base in Strasbourg, instead of making it its advantage, turned into its main drawback. More than a decade later, this author was the witness of how a bureaucratic machinery, as the one of the Council, has turned into an inwardly
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administrative labyrinth sometimes detached from the realities of this world. Not to be misunderstood, I ought to emphasize that the Council has had an impressive development both in quantity and quality over the last twenty years, but its internal administrative setup became too complex and eventually, internally competitive (and not always in a positive way) due to the unclear division of labor among the various departments and directorates. The Council’s membership has doubled and the width and depth of its standard-setting regulations and mechanisms has perhaps quadrupled and more. One would instantly ask about the contradictions of the parallel having the claim for a downfall of the organization during the very same twenty years when it had the most visible achievements. A simple, or perhaps a too simplified comparison, would juxtapose the Council of Europe to the European Union of today versus the emerging new dynamic world increasingly centering on Asia. At the times when the EU has had an unprecedented development (in number of increasing membership and depth of its integration), the relative influence of the very same EU and its members has regressed when compared to China or even other blocks of emerging countries. Similarly, although over the past two decades the Council of Europe grew in size and substance, yet it lost ground in relative influence to its ‘competitors’ such as the OSCE and even the EU. In both the examples of the Council of Europe and the EU, the root of the problem lays in the lack of a long-term vision and political strategy on making an organization competitive in an ocean of up-an-running contenders. The Council of Europe should have remained firm on selfishly keeping its undisputed qualities and achievements within the organization, such as for long being the only true intergovernmental organization that from day one has firmly committed to advocating the rights of the individual and unprecedentedly, through its wide array of standard-setting regulations, daring to challenge governments` maltreatment of their own citizens or their breach of accords signed as a member of the Council. Relenting elections monitoring to the OSCE was a strategic mistake at the times which could have transformed the Council from a standard-setting organization and a high profile debating club, which is to this day, to an entity that would often have had a key role in international relations.

The conflict that could have put Strasbourg back on the map
One such major missed opportunity of a situation, if properly used, that could have redefined the standing of Strasbourg on the world stage, was in 2008 when Russia and Georgia got involved in an all-out war. Having both countries as
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members, and the first two ever that have been at war with each other in the history of the Council of Europe, presented a unique opportunity for Strasbourg to jump into the crisis as a mediator and facilitator of the return of peace and leading the reconciliation and reconstruction process. Having myself dealt with the cooperation of the Council of Europe with the Russian Federation, I could not help but notice the lack of preparedness of the Council’s administration to efficiently align its ranks across its various (often rivaling) directorates and departments in order to facilitate a single, strong and timely voice of Strasbourg on that immense political and security crisis involving two of its members. Of all the many departments of the Council, only one managed to fully live up to the challenge and play an active role in the crisis-management of the Russia-Georgia conflict, namely the Office of the Commissioner for Human Rights of the Council of Europe and the Commissioner himself (Thomas Hammarberg). The Commissioner played a sensitive mediating role in resolving the refugee crisis in South and North Ossetia. Why, of all the robust directorates and departments of the Council of Europe, the smallest and one of the youngest succeeded in addressing the challenges and opportunities of the situation? The answer lays in part of the question: due to the small size of the administrative apparatus, the clear mandate and unrestrained leadership of the manager, i.e. the Commissioner.

Learning from within: a case for a reformed administration and revisited mandate
If the Council of Europe would seek to find a model for its restructuring, it should not look further than from its most successful units: the Commissioner of Human Rights and the European Court of Human Rights. The first, a small unit dealing less with administration and technicalities, but with substantial focus on a clear mandate; and the latter, with its commitment to the strongest and yet, traditional founding asset of the Council of Europe, the European Convention on Human Rights. Instead of focusing most of its energy (and ever more limited funding) only on pure technical assistance, the Council of Europe should transform on two main pillars, mirroring the proven added-value of the operation of the Commissioner and of the Court. The first pillar is that of the Council of Europe becoming a unique intergovernmental organization that would produce analysis and policy recommendations akin to those done by a think-tank, but only with much more credibility and depth; and the second would mean that the organization would further promote and develop its biggest strength: the European Convention on Human Rights and the European Court of Human Rights, as the European powerhouse of scrutiny over national judiciaries in individual and (hopefully
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in the future) also increasingly in collective rights. The two pillar reform would be achieved with only a drastic reshuffle of the organizational make-up of the Council, with bold vision and willingness to cut sharp wherever needed in the existing organogram and to advance those qualities that would avert having yet another missed opportunity and lost cause, such as the mentioned in this text Russia-Georgia crisis or the OSCE/ODIHR handover of elections monitoring. The Council of Europe, an organization with a truly remarkable legacy, and even more, a potential, should not be forgotten as a relic of the old east-west divide, as it is on the contrary an organization that is more valued and appreciated by its newer members of the ‘east’ than from its founding members, many of whom pay ever less attention to the work of the organization. The Council of Europe has remained the sole European organization that fully centers its purpose of being on the protection of the human rights of the individual, keeping him/her safe even from the potential misconduct of the government of his/her own citizenship, thanks to such timeless documents as the European Convention of Human Rights and the professional commitment of the European Court of Human Rights. The Council of Europe should rediscover its own values and achievements, as the current Macedonian Chairmanship of the Committee of Ministers advocates, on such issues which are at its biggest strength: advocating for the participation of minorities in government and the further incorporation of the case law of the European Court of Human Rights in member states` national legislations. Moreover, the Council ought to venture deeply into the protection of group and minority rights and make them subject to the European Convention of Human Rights. Last but not least, the Council of Europe should expand its cooperation with the European Union, in particular when it comes to the monitoring of collective, minority rights, not only vis-à-vis potential EU members, but even more, existing EU members which are effectively not monitored for their own respect of commitments undertaken when having joined the Union. Making the EU a party to the European Convention on Human Rights, for which there have been discussions, would be the right step in the right direction. Whilst overhauling its mandate, the Council of Europe in parallel will have to drastically reorganize its internal setup by radically simplifying its structure and by providing a much stronger support for its Directorate General of Democracy and Political Affairs, making it a think-tank powerhouse, but also an early-warning watchdog for all the potential situations that would necessitate an active role for the organization. This Directorate, as well all other ones, will have to be relieved from the management of technical assistance projects that should be centered into a single Directorate for Technical Assistance that would exclusively deal with such invaluable assistance for the member states in need. This would be contrary to the existing practice where each directorate has its own division or department separately
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dealing with project management. This leads to the ongoing lack of awareness and coordination across the directorates on the projects implemented in the same target country and a duplication of administrative expenses. Concentration of project management under a single administrative umbrella would bring efficiency in expenditures as well as would enable synergy in policy outcomes. At the end, I have intentionally left the most promising news wishing that the reader would not be left with a bleak picture for the future of the Council of Europe when finishing with this text. The proposals made herein are not calls for actions to be made, but appeal for them to be reflected in the action that is just now in the making, all with the purpose for bringing Strasbourg back on its feet. With the arrival of the new Secretary General of the Council of Europe Thorbjørn Jagland in 2009, new hopes have arisen for the reform of the organization. The first most visible decision made in that direction was that of following the path of the reformist ventures of other similar organizations: that of the establishment of an ad-hoc group of experts that would prepare an analysis and set of proposals on the future of the organization. This group, called the “The Council of Europe Group of Eminent Persons” was just recently established in Brussels under the leadership of former German Foreign Minister Joschka Fischer. This group will aim to achieve the broadly defined target of “...helping the Council of Europe, as guardian of the European Convention on Human Rights, to deal with new challenges for security and stability of European citizens.”1 Founded only two weeks before this writing, we can only hope that the group of nine, indeed eminent, Europeans, will provide a thorough analysis and tangible proposals for the political and administrative reform of Europe’s oldest and to many, most genuine organization committed to the pursuit of human rights and dignity.

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CoE Communiqué on Group of Eminent Persons https://wcd.coe.int//ViewDoc.jsp?Ref=MA099 %282010%29&Language=lanEnglish&Ver=original&BackColorInternet=F5CA75&BackColorIn tranet=F5CA75&BackColorLogged=A9BACE

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2.316.723-027.463(4)

Religious Dimensions of Inter-Cultural Dialogue and the Promotion of Social Cohesion in Europe
Ewan KING, Sanah ShEIKh and chris REED Introduction
The Council of Europe is committed to tackling discrimination and promoting community cohesion, a commitment which is set out in many of its high level policy statements, including the White Paper on Inter-cultural Dialogue1. One dimension of this broader strategy is the commitment to promote inter-cultural dialogue between people of different religions, cultures and ethnic backgrounds. Inter-cultural and inter-faith dialogue, it is argued, can promote greater understanding between communities, promote a culture of tolerance, and reduce levels of discrimination. This year, in its role as Chair of the Council of Europe, the Republic of Macedonia hosted the Council of Europe 2010 Exchange on the religious dimension of intercultural dialogue. The event took place on the 13th and 14th of September 2010 in Ohrid Macedonia, and explored the specific theme of “The role of the media in promoting intercultural dialogue, tolerance and mutual understanding: freedom of expression in the media and respect for cultural and religious diversity”. The conference, which was attended by over 100 experts and people of faith from across Europe,
1

Council of Europe (2008) White Paper on Inter-cultural Dialogue. Council of Europe. Strasbourg. Ewan King, Director of the Analytical Studies Unit at the Office for Public Management (OPM), where he has worked as a social researcher and policy analyst since 1998. Ewan leads on the delivery of OPM's work on community cohesion and the Prevent agenda. Ewan has an MSc in Political Sociology from the London School of Economics (1996) and a BA in Politics and Sociology from Warwick University (1995). Sanah Sheikh, Associate Fellow at OPM where she has worked as qualitative social researcher since 2007. Sanah supports the coordination and delivery of OPM's work on community cohesion and the Prevent agenda. Sanah has an MSc in Social Psychology from the London School of Economics (2005) and a BA in Economics from Brown University (2001). Chris Reed, Researcher at OPM where he has worked since 2009. Since joining OPM, Chris has specialised as a qualitative researcher in OPM’s work on building resilient communities. Chris has an MSc in International Relations from the London School of Economics (2008) and a BA in Politics from the University of York (2007).

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provided an excellent platform to explore the challenges facing communities in Europe, the opportunities for inter-faith dialogue, and how national governments and local communities can work together to promote community cohesion and inter-religious tolerance. One of the authors of this paper, Ewan King, Director of Research at the Office for Public Management (OPM) in the United Kingdom (UK), attended this event, where he discussed the work of OPM in supporting a group of young Muslim leaders in England – the Young Muslim Advisory Group. As a result of this contribution, Ewan and his colleagues from OPM were invited to explore the religious dimensions of inter-cultural dialogue looking specifically at how it can foster community cohesion in European states. This paper seeks to explore the importance of inter-faith and inter-cultural dialogue, highlight the current challenges and opportunities associated with diversity and examine practical examples of how inter-faith dialogue can be successfully promoted and delivered.

Importance of inter-faith and inter-cultural dialogue
Immigration and the ethnic and religious diversity that it often produces is an established feature of more or less all European societies. Europe’s total migrant population now exceeds that of North America2, whilst in the last decade, European Union (EU) enlargement in 2004 and 2007 has proved one of the most significant drivers of recent changes to the ethnic, religious and cultural make up of many EU member states’ populations3. For example, in 2006 60% of the immigrants to the EU-27 states were citizens of countries outside the European Union4. While public and political debate about the precise significance of immigration and its social and economic implications continue apace in many EU member states, there is a broad consensus that demographic change is likely to persist and that Europe will become more, rather than less, religiously and ethnically diverse. In the UK, for example, there have been recent projections that ethnic minorities will likely constitute 20% of the population by 2051 and enjoy greater geographical dispersal than at present5. Such projections often highlight that immigrant populations typically have higher fertility rates than their native-born counterparts, meaning
2

3

4

5

International Organisation on Migration (2003) World Migration 2003. Managing Migration: challenges and Responses for People on the Move. IOM. Geneva. Kahanec, Martin & Zimmermann, Klaus. F (2009) Migration in an Enlarged EU: A challenging Solution? Economic Papers 363. European Commission. Brussels. From Eurostat: http://epp.eurostat.ec.europa.eu/cache/ITY_OFFPUB/KS-SF-08-098/EN/KS-SF08-098-EN.PDF Rees et al. (2010) Ethnic Population Projections for the UK and Local Areas, 2001 – 2051. University of Leeds, School of Geography.

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that future socio-demographic change is highly likely even if net immigration to European states somehow grounds to a complete halt. The growing body of empirical evidence showing the likelihood of increased demographic change in Europe implies certain potential benefits and challenges. The economic case for immigration and diversity is well known with the governments of several key EU member states having produced a wealth of evidence that indicates how immigration can: i) contribute positively to national income; ii) fill gaps in labour markets; iii) make much needed fiscal contributions to social security systems, particularly in countries with ageing populations (amongst others)6. There are also wider benefits of diversity, albeit these are less immediate or tangible, such as greater ‘knowledge capital’ in the exchange of different cultural ideas about ways of living and working. Greater diversity is also credited with an expansion of civil society in many European countries, along with new institutional structures and a wider political culture that attempts to encourage social inclusion7. In addition to these benefits, religious and ethnic diversity is often seen as presenting complex challenges to social cohesion – that is the goal of creating societies where people of different backgrounds live and work together in harmony. In the last decade, episodes of relatively severe civil unrest have occurred in several western European countries, including: Spain (2000), UK (Bradford, Burnley and Oldham, 2001), Paris (2005) and Italy (2005). Although violent civil unrest is just one relatively blunt indicator of poor social cohesion (there are many less overt yet equally important indicators), many of these periods of unrest were attributed to a lack of social cohesion between diverse populations. The Cantle Report8, for example, which investigated the causes of UK civil unrest in 2001, highlights the lack of social cohesion – different ethnic communities living ‘parallel lives’ – as the key cause of the riots. There have also been incidents relating specifically to issues of faith – in 2006, the publication of cartoons depicting the prophet Muhammad in the Jyllands-Posten and subsequent attacks on Danish embassies in Syria, Lebanon and Iran, were probably the most widely reported in Europe9. Similarly, the ban on the construction of minarets in Switzerland (introduced in late 2009), along with the growing electoral success of some right wing parties with overt anti-immigration and anti-Islamic stances in Holland, Sweden and Belgium highlights how diversity and religious or cultural expression can raise tensions between communities.
6

Putnam, R. (2007) E Pluribus Unum: Diversity and community in the 21st century, The 2006 Johan Skytte Prize Lecture, Scandinavian Political Studies, 30: 137–174.
European Migration Network (2006) Impact of Immigration on Europe’s societies. European Commission. UK Home Office (2001) community cohesion: A Report of the Independent Review Team, chaired by Ted cantle. Home Office. London. CNN (2006) Embassies Torched in cartoon Fury. http://edition.cnn.com/2006/WORLD/meast/02/04/ syria.cartoon/

7 8

9

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Perceived or real increases in competition for resources – particularly in housing and labour markets – following increased immigration and an often attendant rise in diversity, are also credited with raising public concern about the impact of immigration and diversity. In the UK, the House of Lords Select Committee on Economic Affairs reported that, ‘for most of 2006 and 2007, immigration was the number one issue of concern to the British public, more important than law and order, the National Health Service (NHS) and international terrorism’10 (2008: 7). There have also been mounting calls for national governments to better monitor the impacts of immigration and the pace of demographic change at a local level. Where relatively small and established communities change rapidly in size or demography due to immigration, established residents can feel unsettled and local public services over-burdened without sufficient forewarning. The main contention of this article is that the inter-faith dimension of cultural dialogue provides a means of tackling the above mentioned challenges of increased diversity in both theory and practice. Firstly, at a theoretical level, inter-faith dialogue provides an account of diversity that includes a conceptualisation of meaningful interaction between people from different backgrounds, rather than their simply tolerating one another or co-existing. This understanding of dialogue builds on and refines the established tenets of social contact theory that have so far guided much of the thinking and practice in building social cohesion. Encouraging meaningful contact between people from different religious backgrounds can counteract the perception and belief that ‘otherness’ cannot be overcome, by allowing individuals to discover what they have in common rather than only what sets them apart. It also provides opportunities for stereotypes to be questioned, ignorance to be tackled and myths to be dispelled. For example, in the UK there is a misconception amongst many British-born communities about refugees receiving greater and quicker access to the benefits system, when in fact newly arrived migrants have very few rights and entitlements for their first few years of residence. The following section of this article attempts to set out how inter-faith dialogue can be used in practice to tackle the challenges presented by greater social diversity.

What makes inter-faith/cultural dialogue work well
Inter-faith dialogue is in itself a simple enough concept to define. National government in the UK, in its guidance for local government, has referred to interfaith dialogue and interaction as opportunities for ‘face to face dialogue which supports a greater understanding of shared values as well as an appreciation of distinctiveness
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House of Lords Select Committee on Economic Affairs (2008) The Impact of Immigration: Volume 1 Report. House of Lords. London.

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(CLG, 2008: 8).’11 The challenge lies in how such dialogue is designed and delivered. Doing inter-faith dialogue well requires innovation, creativity and sensitivity to a range of issues. All too often inter-faith initiatives consist of one-off or a series of events celebrating the history and traditions of various faiths, or the erection of local or regional level inter-faith networks or forums. Events such as these tend to engage with people as ‘members of the community’ and interaction thus takes place in the realm of community life. However, the fact is that ‘community member’ represents only one of the roles occupied by people in the context of their daily lives. For example, in the span of a single day a woman can shift back and forth between her role as a mother, professional, student, citizen or community member. We believe that for inter-faith interaction and dialogue to have a long lasting impact and result in meaningful changes in attitudes and behaviours, it needs to take place in all realms of people’s lives. People from different faiths need to be able to see each other not only as fellow members of the community or as neighbours, but also as peers in other domains of their lives. Consider, for example, an initiative organised by the European Muslim Union in conjunction with the Bosnian–Islamic Cultural Centre– a series of international market festivals in Cologne, Germany. For two days, traders, both Muslims and non-Muslims, set up their stands selling art, textiles, books and food. This was accompanied by a children’s programme and diverse musical performances. The markets were well attended by Muslims and non-Muslims. What resulted was a festive atmosphere where people had the opportunity to interact in their roles as ‘traders’ or ‘musicians’ or ‘consumers’. For some people, the interaction took place in the realm of their professional lives whilst for others, in their leisure or social lives. What makes initiatives like these successful is that they give people the opportunity to interact not simply as ‘Muslims’ and ‘non-Muslims’ but in the context of other roles and identities that also form an important part of who they are. Closely related to this need for multi-domain interaction, is the importance of ensuring that inter-faith dialogue mirrors, as far as possible, real life daily interactions. Interaction and dialogue needs to feel authentic. The setting and spaces where this dialogue happens can determine to a great extent the authenticity of the experience. There is evidence to suggest that meaningful interaction can actually take place in ‘unexceptional and mundane’ environments (Cattell et al., 2008: 558)12. Bringing people together in spaces where they naturally tend to congregate and interact can enhance engagement.

11

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CLG (2008) Face to Face and Side By Side: A Framework for Partnership in our Multifaith Society. Department for Communities and Local Government. London. Cattell et al. (2008) Mingling, Observing and Lingering: Everyday Public Spaces and their Implications for Well-being and Social Relations, Health and Place, 14(3): 544-561.

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– Ewan KING, Sanah ShEIKh and chris REED –

Research published by the Joseph Rowntree Foundation13 and conducted with Muslim communities in Birmingham, Bradford and the London borough of Newham (three areas in the UK where there are a large number of Muslims) asked participants to consider the types of spaces where they had meaningful conversation and exchanges with people from backgrounds different to their own. The workplace, educational sites, parks and play areas, supermarkets and medical centres were the locations where this type of interaction and dialogue most frequently happened. In this sense, people are more likely to participate and engage in inter-faith initiatives that do not require them to access unfamiliar spaces or venues. For example, an appropriate setting for an inter-faith initiative for non working mothers could be primary or secondary schools, as this is where they tend to congregate when collecting their children. Building in an hour either before or after schools let out requires minimal effort and thus ensures more women are willing to participate. For inter-faith work to realistically result in better tolerance and understanding and thereby in greater cohesion and integration, it needs to start at a young age. More specifically, such work needs to start when young people begin to explore and strive to establish a sense of personal identity. This process inevitably requires the recognition of difference and ‘otherness’ as, to a certain extent, identity is relational and established through binary oppositions – you are what you aren’t. Black/white, male/female – binary oppositions are useful as they allow individuals to self-categorise themselves into groups. It is thus at this point, when young people begin to construct notions of self and other, that inter-faith initiatives play a critical role in ensuring that the information and knowledge that young people draw on is balanced, accurate and infused with messages of equality and tolerance. For example, Choudhury (2007)14 has noted the growing prominence of religion as an identity marker for young Muslims. As part of this search for identity, individuals seek to construct a sense of what it means to be Muslim in the society or country they live in. It is also a well known fact that traditional Islamic institutions have often been seen as failing to connect with young people and address their issues and concerns, which inevitably leaves them susceptible to extremist organisations and messages that promote intolerance and rejection of other religions and cultures. Inter-faith dialogue thus has an important role to play at this critical juncture. A common challenge for practitioners and organisers of inter-faith initiatives is ensuring that the content of such initiatives is interesting and engaging. This is particularly important when such initiatives are aimed at young people and delivered
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14

Jayaweera, H. and Choudhury, T. (2008) Immigration, Faith and cohesion: Evidence from Local Areas with Significant Muslim Populations. Joseph Rowntree Foundation. London. Choudhury, T. (2007) The Role of Muslim Identity Politics in Radicalisation. Department for Communities and Local Government. London.

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in schools. An important part of ensuring that young people find initiatives enjoyable is designing a format of delivery that does not make them feel that they are in a classroom, following teachers ‘orders’ or listening to a lecture. Such associations are often likely to result in a lack of enthusiasm from young people and an almost automatic dismissal of the programme. Instead, young people tend to prefer informal working environments that include lots of discussion, question and answer sessions, small group exercises and plenary sessions. One organisation in the UK that has been successful in achieving this is the Three Faiths Forum15 who have designed ‘Tools for Trialogue’- a school based initiative that involves reading and discussing passages from Jewish, Christian and Muslim scriptures. It engages participants in the study of different religious texts, through the exploration of a topical theme relevant to the lives of the participants. The pupils work in small groups to explore three carefully chosen excerpts of religious texts, focused on a theme relevant to youth culture such as ‘bling’ (personal adornment and dress) or ‘relationships’. They consider the meaning of what they are reading, its implications for different cultural practices seen in everyday life, and areas of commonality and difference between the three faiths. They do this with the guidance of three ‘lay’ facilitators: one Christian, one Muslim and one person of the Jewish faith. This is then followed by a plenary session which relates the interpretations back to the ways in which different faith communities live their lives. This initiative has worked particularly well not only because it offers a refreshing and new way to explore issues of faith but also because of its use of external facilitators who are regarded as having greater credibility and authority on the issues and topics that are discussed. Ensuring that initiatives are engaging and enjoyable for young people also means that practitioners should design programmes that align with the interests and hobbies of young people. This can include, for example, using ICT tools such as social messaging and online forums, sports, music and films as part of the delivery of an initiative. For example, having a group of young people from different faiths working together to create a film, or take part in a series of football matches, or working to set up a Wiki database is often likely to be more successful than a lesson in race, faith and diversity. Consider Dissolving Boundaries16 - a project that aims to promote cross border relationships between young people in schools in North and South Ireland through curricular work that requires the use of ICT. Although not an inter-faith initiative, one can imagine it working equally well with groups of Muslim and Jewish students. The pupils from both schools work on a joint, collaborative project with clear links to the primary curriculum (for example ‘wild animals’ or ‘World War
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See http://www.threefaithsforum.org.uk/index.html See http://www.dissolvingboundaries.org/

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– Ewan KING, Sanah ShEIKh and chris REED –

1’.) Schools make contact using Moodle (a Virtual Learning Environment) and teachers encourage social messaging so pupils from both schools can get to know each other before starting to work on the agreed topic. The two groups have a video conference at the end of the first round of collaboration which allows students to put faces to each other’s names and through this encourage a deeper working relationship. The project culminates in the development of a Wiki to which both groups can contribute and edit. Finally, pupils have a face to face meeting at some stage during the project – often at the end – to consolidate their relationship into friendship (if appropriate). This initiative worked particularly well because it felt more ‘natural’ to young people to collaborate and work with each other using social messaging, online discussion forums and video conferences (similar to Skype). This is because young people associate these forms of communication with their social life and leisure time. Additionally, the use of social media worked particularly well because it acted as a ‘safe space’ for communication. Using social messaging or video conferencing meant that the participants could get to know each other at their own pace and without the pressure of a facilitated face to face meeting. The success of the above initiative also brings another important point to light - inter faith dialogue does not always need to be explicitly about faith. Rather than delivering a programme of learning (like Tools for Trialogue) it is often better to simply provide the space and opportunity for dialogue to occur organically. For example, inter-faith initiatives can focus on bringing people in a neighbourhood together to tackle a common issue or problem – for example a problem with graffiti and litter in the local area. Working in small groups with set goals creates a collaborative atmosphere where people are more likely to listen and respond to each other and learn from each other. These types of interactions also play a big role in fostering friendships or deepening existing relationships. There is also a sense of pride and accomplishment as a result of having achieved something together. It can create solidarity and a sense of belonging to a group. This identification with the ‘group’ can then become internalised as part of all the other identifications that define people in the context of their daily lives. Some of these identifications are experienced as ‘imperative’, for example race, gender and increasingly religion, in that one cannot dismiss the power with which they impinge on identity. Others are more ‘contractual’, in that people are free to move away from them, for example social groups, team memberships and job positions17. However, at any single point in time both imperative and contractual identifications contribute to a person’s sense of self. Team and group memberships thus play a big role in widening the associations and relationships that occupy an individual’s life.
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Duveen, G. (2001). Representations, Identities and Resistance. In K. Deux & G. Philogène (Eds.) Representations of the Social. Oxford: Blackwell.

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Religious Dimensions of Inter-cultural Dialogue and the Promotion of Social cohesion in Europe

It is important for practitioners to remember that inter-faith dialogue can very often require the discussion of sensitive topics and people can find it difficult to voice their opinions, concerns or attitudes for fear of these being regarded as inappropriate, ignorant or biased. A useful tool in constructing a safe space where dialogue can take place is the use of drama, role-play and humour. These act as safe vehicles that allow people to talk about controversial issues without having to express such ideas and opinions as their own. A number of good practice examples can be drawn from the UK. Not in my name, delivered by Fuse Theatre is one such example. It is a hard hitting drama aimed at 13-18 year olds in schools which explores the aftermath of a fictional terror attack from the perspective of a range of young characters. It is followed by open forums and workshops that allow young people to speak and learn about issues relating to extremism and terrorism. Another good example is choices and Voices which consists of a series of interactive digital role playing games where players are faced with a range of moral dilemmas in which their decisions have an impact on them and their families and friends. It encourages young people to explore underlying issues and influences which result in tensions between communities. Both examples have been met with resounding success because of the manner in which they have stimulated dialogue and discussion. As we have argued above, inter-faith dialogue has an important role to play in tackling social cohesion and building integrated communities. However initiatives like these are likely to have little success unless they are accompanied by a wider programme of work that is committed to reducing the inequalities that often characterise diverse societies. In the UK there is evidence to suggest that minority groups often suffer from multiple disadvantages. Pakistani’s have the highest unemployment rate (20%), Asian groups suffer from the worst self-reported health and a third of Muslims have no educational qualifications18. A similar situation exists in Europe – In the Netherlands, people from a Turkish background are twice as likely as the average person to be unemployed, in Denmark, Iraqi’s earn half the national average wage, and in France immigrants are also twice as likely to be unemployed compared to the native French19. Not only do such inequalities have the potential to lead to tensions that have an impact on community relations, there is also a wealth of evidence that identifies such inequalities as contributing to the risk factors associated with violent extremism.

18 19

From the 2001 Census High Level Advisory Group of Experts on the Social Integration of Ethnic Minorities (2007) Ethnic Minorities in the labour market: An Urgent call for Better Social Inclusion. Brussels.

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– Ewan KING, Sanah ShEIKh and chris REED –

The role of the council of Europe and other national bodies
The Council of Europe is only one of a myriad of international organisations that can have a role to play in promoting inter-faith and inter-cultural dialogue. However, it has a powerful role in setting the tone of the debate, and in guiding a wide range of European states towards a consensus. The Council of Europe through its exchanges on inter-cultural dialogue has already enriched and widened the debate, but more can be done. There is a clear need, a message that came out strongly at the Exchange in Ohrid, to build a shared understanding of what works in this field of inter-faith and inter-cultural dialogue. While good practice, as we have argued in this paper, clearly does exist, there is need to pull this together at the European level and make it accessible to a wider audience. There is also a need, perhaps through a new social media platform, to link practitioners and civil society organisations working throughout Europe so that they can more easily network and share learning. The pressures on communities, especially in the current economic climate, are likely to increase over the coming years rather than fall away, placing real pressure on the consensus that we need to build more tolerant and cohesive societies. Consequently, the need to share and progress what we know about ‘what works’ in this arena is more important than ever before. To find out more about the authors and OPM please go to www.opm.co.uk

References
Cattell, V., Dines, N., Gesler, W. and Curtis, S. (2008) Mingling, Observing and Lingering: Everyday Public Spaces and their Implications for Well-being and Social Relations, Health and Place, 14(3): 544-561. Choudhury, T. (2007) The Role of Muslim Identity Politics in Radicalisation. Department for Communities and Local Government. London. CLG (2008) Face to Face and Side By Side: A Framework for Partnership in our Multifaith Society. Department for Communities and Local Government. London. Council of Europe (2008) White Paper on Inter-cultural Dialogue. Council of Europe. Strasbourg. Duveen, G. (2001). Representations, Identities and Resistance. In K. Deux & G. Philogène (Eds.) Representations of the Social. Oxford: Blackwell. European Migration Network (2006) Impact of Immigration on Europe’s societies. European Commission.

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High Level Advisory Group of Experts on the Social Integration of Ethnic Minorities (2007) Ethnic Minorities in the labour market: An Urgent call for Better Social Inclusion. Brussels. House of Lords Select Committee on Economic Affairs (2008) The Impact of Immigration: Volume 1 Report. House of Lords. London. International Organisation on Migration (2003) World Migration 2003. Managing Migration: challenges and Responses for People on the Move. IOM. Geneva. Jayaweera, H. and Choudhury, T. (2008) Immigration, Faith and cohesion: Evidence from Local Areas with Significant Muslim Populations. Joseph Rowntree Foundation. London. Kahanec, Martin & Zimmermann, Klaus. F (2009) Migration in an Enlarged EU: A challenging Solution? Economic Papers 363. European Commission. Brussels. Putnam, R. (2007) E Pluribus Unum: Diversity and community in the 21st century, The 2006 Johan Skytte Prize Lecture, Scandinavian Political Studies, 30: 137–174. Rees et al. (2010) Ethnic Population Projections for the UK and Local Areas, 2001 – 2051. University of Leeds, School of Geography. UK Home Office (2001) community cohesion: A Report of the Independent Review Team, chaired by Ted cantle. Home Office. London.

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341.176(4):321.7

A Promise Unfulfilled
The Council of Europe’s Standards for Media in Democratic Society1

Mark ThOMPSON
There is a good reason why the Council’s standards for the media are not much known, or known at all, even among media professionals, in countries with strong democratic and liberal traditions of respect for human rights. For these standards are warning lights, or emergency resources. We should only need to know about them in a crisis, and it is not normal to live in the constant expectation of crisis. Yet there are other, not so good reasons why there is still so little awareness of the Council’s work in setting standards for media. These other reasons are a result of the way in which these standards have been implemented – or not been implemented. This is an important failing, and I will come back to it later in this essay. Let me first say something about what these standards are. Since the early 1980s, the Council of Europe has adopted a great many measures – dozens of them – which aim to define normative standards for media in democratic societies, covering a wide range of issues, some rather technical, others rather more ethical. A few of them are binding on signatories; most of them are guidelines, suggestions for how to uphold recognised international standards in this field. The foundation of these standards is Article 10 of the European Convention on Human Rights, binding on all member states of the Council, which begins: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” This opening declaration is followed by some conditions or limits. This twopart structure is very characteristic of the Convention, and we might say also of
1

This essay is based on a speech to the 2010 Council of Europe Exchange on the religious dimension of intercultural dialogue: Media, beliefs and religions, held in Ohrid, 13 and 14 September 2010. He writes here in a personal capacity. Mark Thompson, Website and Reports Editor of the Open Society Institute Media Programme. He has authored several publications including Forging War (1999), Forging Peace (2002, with Monroe Price) and The White War (2008)

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– Mark ThOMPSON –

the value-pluralist philosophy that underlies the Council of Europe as a whole. Namely, we have this right, but it is not unqualified – there are other rights which may compete and clash with this one. So do not assume that this right will always prevail, even if it is supremely important to me and you. (As for why we can call this structure European, compare Article 10 of the Convention with the First Amendment to the United States Constitution, which simply provides that “Congress shall make no law… abridging the freedom of speech, or of the press…” No exceptions are provided for. The right is absolute.) This balancing of rights by the European Convention is ultimately the business and prerogative of the European Court of Human Rights. However, having said that, what the Court has found in its judgments on Article 10 cases – and this is very important – is that freedom of expression is a precondition for the enjoyment of other rights, including Article 9, which establishes the freedom of thought, conscience and religion. So, this body of media standards is intended to translate the principles of Article 10 into law, policy and – most important of all – into actual practice. They have been produced by various bodies in or under the Council: the Committee of Ministers; the Parliamentary Assembly; the Venice Commission; and the European Commission against Racism and Intolerance. The key body is the Committee of Ministers, representing the will of the member states.2 These standards cover a wide range of topics and issues, which includes the following: • • • • • • • • • • • • •
2

Public service media (what used to be public service broadcasting) Media pluralism and diversity The coverage of elections The right of reply Hate-speech and violence in the media The transparency of media ownership Blasphemy and respect for religious beliefs Media regulation The internet, the information society, and new communications technology The protection of journalists’ sources Local and community media Investigative journalism Media education and media literacy

The Recommendations, Resolutions and Declarations adopted by the Committee of Ministers in the media field are listed at http://www.coe.int/t/dghl/standardsetting/media/Doc/CM_en.asp

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A Promise Unfulfilled

• • • • •

Copyright, piracy and cultural policy The fight against terrorism Freedom of political debate Cybercrime The protection of privacy, of minors, and of journalists in situations of conflict and tension.

That is not a complete list, but it suffices to show that, all in all, this is an impressive canon of standards. There is nothing else like it in the world – a set of well worked out definitions of normative standards and preferable practice for the media, approved by 47 states. Coming as I do from the non-governmental sector, I share the criticisms that have been made of quite a few of these standards, such as the Cybercrime Convention and the Convention on Access to Official Documents: that they contain too many compromises, and fall short of the highest desirable standards. It is striking that the Cybercrime Convention’s approach was implicitly faulted by the Council’s own recent ministerial resolution that emerged from the 2009 Conference of Ministers responsible for Media and New Communication Services, in Reykjavik. (The resolution stated that “in some cases, anti-terrorism legislation restricting freedom of expression and freedom of information is too broad, fails to define clear limits to authorities’ interference or lacks sufficient procedural guarantees to prevent abuse”.) Self-criticism of this kind is extraordinarily rare among intergovernmental organisations, and the Council deserves high praise for it. Less admirable, on the other hand, is the fact that member states have not yet – as far as I know – reviewed their anti-terror laws for potential negative impact on access to information and freedom of expression, even though they pledged to do this after the Reykjavik conference. It is also true that the Council has not grappled with some of the more difficult issues. For example, it has not really set a standard regarding the concentration of media ownership. Nor has it dealt with the full range of concerns about defamation. Member state courts are constantly claiming that journalists’ opinions are factual allegations – and this lays them open to severe punishment. The European Court repeatedly throws out these judgments, and it is time that the Committee of Ministers endorsed a standard in this respect. Likewise, the Court consistently upholds the principle that journalists may benefit from considerations of public interest or ethical intention if they make factual mistakes in the course of their work. Also, the Council should call once and for all for the decriminalisation of defamation. Coming to the internet and the information society: the Council has, over the past four years, made notable efforts to re-examine traditional media rights
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– Mark ThOMPSON –

– from the age of print and broadcasting – in the age of global instantaneity, of universal simultaneous one-to-many communication, with all its opportunities and risks. This is a worthwhile endeavour, but what now needs to happen is for the Ministers to take the further step of declaring that internet access, as such, is a human right. But the bigger objection that we – who work for media freedom or media development organisations – have about the Council’s work on media is that the actual implementation has been so sporadic and unsustained. Let me be clear: there was a great deal of activity, especially in central and eastern Europe, between the mid 1990s and about 2005. Laws were reviewed and improved, journalists were trained, parliamentarians were informed about best practices, and principles were expounded at innumerable seminars and conferences. The Council can be proud of that. And of course there is the Court, with its splendid case-law, accumulating year after year. What, though, are the actual results of all that work, in terms of media performance? Are the Council’s own standards respected in all the member states? By no means. Just to emphasise how far short of Council standards many member states fall, let me focus on two standards, relating to the independence of public service media and the independence of broadcasting regulators.3 It is not an exaggeration to say that the respect for those two standards alone were to be respected by the Council of Europe’s member states, the media landscape across Europe would be transformed. In many or most member states, the public service media and the audiovisual regulators operate under strong, often suffocating political influence. This has crippled these institutions, locking the public media into a vicious circle of poor performance, low public (and professional) credibility, underfunding, and crisis of mission or purpose. The regulators fail to ensure equitable access for media companies, regardless of political loyalty or connections. The result is plain to see: these institutions have not fulfilled their task of creating and sustaining a vibrant, inclusive media space for quality production, where all sectors of a society can find their concerns more or less reflected, in close proximity. A space where, as someone once said, the ‘national conversation’ can take place. It is in all of our interests to build and strengthen this sort of public space. Without it, there is a great risk that religious groups – and their concerns, their debates – will find themselves talking to themselves, perhaps not even to each
3

These are “Recommendation No. R (96) 10 of the Committee of Ministers to member states on the guarantee of the independence of public service broadcasting” (1996), and Recommendation No. R(2000) 23 of the Committee of Ministers to member states on the independence and functions of regulatory authorities for the broadcasting sector” (2000).

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A Promise Unfulfilled

other, on the outer margins of a fully marketised public space, dominated by a few powerful commercial players accountable only to their shareholders. The Council of Europe has provided the concepts and standards to resist this trend, and defend public media space. But it does very little, unfortunately, to ensure that those standards are upheld, or to measure the extent of their violation. Let me add here that my own organisation, the Open Society Foundation, carried out extensive research into the condition of television across Europe, between 2005 and 2009.4 The trends we discovered confirm that, in many of the new democracies, there has been regress, or backsliding, from the Council’s standards. We called it the ‘counter-reformation’: following the reforms that were needed in order to join the Council, and in many cases also the European Union, there has been a reaction, a pulling back to the familiar ground of bad old habits. As a result, the public media in many of these countries are falling off a cliff. We also noted the ‘dumbing down’ of mainstream media as they fight over declining advertising budgets and fragmenting audiences in a deregulated market, and depend increasingly on format-programs and soaps, driving out the less commercial production that is the raison d’être for public media: culture, education, current affairs, children’s programs and so on. We all know that intergovernmental and multilateral procedures are limited in what they can achieve, often forcing everyone to walk at a very slow pace. But the time really has now come for a concerted effort to establish the Council’s standards as living letters, not dead letters, with vital relevance to the performance of the media across Europe. Not just the two standards just mentioned, of course – all of them. Much depends on this, including the credibility of the Council itself. This cannot happen without civil society input. Partnerships with nongovernmental organisations (NGOs) have been such a strength of the Council, over the past 15 years or so. This dialogue should now culminate in a combined project to scrutinise media performance vis-à-vis Council standards in each country. (Let me note in passing that the Council should update and relax its rules for NGO participation and observation of its work.) For their part, the NGOs need to cooperate and pool their resources, and create the opportunity to tell the Council Secretariat and the member states that ‘This isn’t good enough; we know it isn’t good enough because of standards that you yourselves have set. Let us now work together to turn those standards into reality.’

4

The results of the “Television across Europe” project are available on the www.mediapolicy.org site, along with other research conducted by the Open Society Media Program as well as by other organisations.

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Macedonian Chairmanship (May-November 2010)
341.176(4).075(497.7)

Macedonian chairmanship Opens New Perspectives

Macedonian Chairmanship Opens New Perspectives
Sanja ZOGRAFSKA-KRSTESKA
Multilateral diplomacy is particularly significant for smaller states which have limited diplomatic networks. The international organizations, considered to be an institutionalized form of multilateralism, present an ideal place for the promotion of policies and interest of their member-states giving them sense of equality. Generally, big and small nations, powerful and weak states are given an equal weight in terms of voting rights and power to decide on various issues on the agenda of the international organizations. So, if multilateralism promotes the equality of states, it also indirectly influences the democratization of the world political system due to the direct involvement of all member states in creating norms and principles for the organization of the international relations. Consequently, small states are interested in being active promoters of international organizations because they can achieve twofold goals- decide on relevant issues for the international community on an equal footing with much more powerful states and influence the creation of more balanced international politics which take on board their concerns. Within the international organizations, which are often seen as “diplomatic bourses”, states exchange views, ideas, information, experiences and jointly create policies with regional or global outreach as an adequate response to their common problems. These processes of interaction are also a learning experience enabling faster political and social maturation for both- states individually and the international institutions. In today’s globalized world there are a lot of arguments in favor of the international organizations as forums for harmonization of policies of their member states which contributes to increasing stability and security in the wider environment. But, there are opposing views too on the role played by the international organizations. To the extend they succeed in harmonizing policies of their member states, “they pander to the lowest common denominator of their
Sanja Zografska-Krsteska, National Coordinator of the Macedonian Chairmanship of the Committee of Ministers of the Council of Europe.

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– Sanja ZOGRAFSKA-KRSTESKA –

members’ interests and paralyze initiative; they thereby become an embarrassing obstacle to problem solving. To the extent they fail to harmonize their members’ policies, they come to be seen as important or irrelevant- diplomatic fog factories, filling the air with vapid rhetoric and sophistry that obfuscates rather than clarifies or facilitates solution of the question before them” (Abba Eban, 1983)1. Raison d’être of the Council of Europe is precisely the harmonization of member states policies in all the spheres of society except defense. So, from the above observation a question can be raised whether the oldest political pan-European organization is important or irrelevant today? Is it a relic from the past incapable of adjusting to the new realities and everyday challenges in Europe? Should member states invest efforts in preserving this standard setting organization and wealth of expertise? How a member state has to prepare for its chairmanship with the decision-making organ of this organization and what range of issues should it take into account? These and many other questions rose before the Republic of Macedonia took over the chairmanship of the Committee of Ministers in May 2010, almost 15 years after acceding to the Council of Europe. According to the social norms fifteen years of age in the life span of a human being is not an age by which a person is accepted as a mature member of society, yet states as political subjects in international relations once becoming full fledged members of an international organization are considered mature and are obliged to assume responsibilities deriving from membership. A chairmanship of an international organization could be considered as a crown of ones membership and an opportunity to demonstrate the state’s capacity to perform this important function. Each chairmanship of the Committee of Ministers of the Council of Europe tends to develop more efficient, balanced and comprehensive program covering all the levels of the organization. The choice of activities pursuit and events organized during the chairmanship can be quite telling about the stance the state is taking on certain issues and its political aims. The position of a chair is always more delicate than that of an ordinary member, demanding a bigger optics and a better perception of the wider political horizon. The Republic of Macedonia has approached its Chairmanship of the Committee of Ministers with great enthusiasm, as its first experience of this kind. The program of the Chairmanship was conceptualized to promote the strengthening of the international and regional role of the country but also to reflect the specific features of our society. The program is complementary to the recent developments within the organization and the reform process launched by the Secretary General of the Council of Europe with the aim to reaffirm the political relevance of the organization.
1

Chas. W. Freeman, Jr., “The Diplomat’s Dictionary”, 1997 Revised edition, United States Institute of Peace Press, Washington, D.C., p. 145

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Macedonian chairmanship Opens New Perspectives

It provides logical continuity of the activities of previous chairmanships and also tackles some of the most topical issues the European societies are confronted with. The idea was to offer few main priorities which consist of themes, activities and events that are relevant and mutually complementing and reinforcing at the same time. Departing from the need to present an adequate approach in addressing the complex problems the member states of the Council of Europe are facing with, the Macedonian Chairmanship has offered an integrative approach. It is based on the fact that the social cohesion of the European societies can be secured through a comprehensive protection of human rights, including social and minority rights. Such a protection gains significance especially in period of economic hardships in multicultural and multi-confessional Europe that has to foster and intensify the multicultural dialogue. This integrative approach is useful for the Council of Europe because it demands mobilization of all its monitoring mechanisms to enhance and consolidate the human rights system in the member states and within the Organization. Through such a co-operative approach various rights can be better safeguarded and the democratic “deficits” can be addressed more easily. This approach is not an innovation, but a political statement, a message that transcends throughout the chairmanship’s priorities. It can be considered as a call on national authorities to develop comprehensive policies bearing in mind the findings of all the monitoring bodies of the Council of Europe. Such policies are adequate response to the complex problems of our societies and the ever growing challenges. Having in mind the financial constrains the approach has advantages for the Council of Europe too, since it implies that the programs of assistance for the member states are designed based on the interdependence and complementarity of the Council of Europe’s Conventions and the findings of the various monitoring mechanisms. One of the most topical issues within the Organization is the Interlaken process which is also based on consolidating action taken at different levels- by member states, by the Committee of Ministers and by the Court. As part of the first Macedonian Chairmanship’s priority “Strengthening human rights protection” the conference organized in Skopje on 1 and 2 October 2010 on the principle of subsidiarity focused on this very important legal principle which presents the essence of the functioning of the control system of the European Convention on Human Rights. Strengthening subsidiarity, which is directly linked to the reform of the European Court of Human Rights and member states efforts to preserve the well functioning of this most recognizable institution in Europe, also calls for an integrative approach. Namely, through the concerted actions of national authorities (governments, courts, Parliaments), where each of them fulfils its own role in strengthening subsidiarity, the human rights can be better guaranteed and
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– Sanja ZOGRAFSKA-KRSTESKA –

protected. Of no less importance is to learn from the mistakes of others and reinforce the authority of the Strasbourg case-law into national law (res interpretata). This widens the scope of analysis the legal experts and practitioners should make to the judgments of other states than their own if they want to act in a preemptive manner and prevent violations of human rights. This “legal farsightedness” is also a necessity if states want to save time and resources in bringing their legal systems into conformity with the Convention and the Court’s case-law. The Skopje Conference entitled “Strengthening subsidiarity: integrating the Court’s case–law into national law and judicial practice” gave opportunity to consider all the relevant aspects connected to this principle, thus contributing to the continuation of the Interlaken process. When choosing our priorities for the Chairmanship we had in mind the country’s specifics and the contribution we can offer to the Organization as our own national experience which made us concentrate on the theme of fostering integration while respecting diversity. Integrating different ethnic groups in all spheres of the society, while preserving their group uniqueness, is a challenge for Europe as a whole. The Conference organized by the Macedonian Ministry of Foreign Affairs on the theme “Strengthening the cohesion of European societies: effective participation of persons belonging to national minorities in the decisionmaking process” provided discussion on this important aspect of achieving de facto integration of national minorities. Again, complementarity of actions and creating synergies among the different national and international actors in this field was examined at the conference. Based on the integrated approach of the Chairmanship’s priorities, the Ministerial Conference entitled “The Social Value of Cultural Heritage in Europe”, organized within the Macedonian Chairmanship of the Committee of Ministers of the Council of Europe in Skopje on 24 and 25 September 2010 focused on the promotion of cultural heritage as a mean of intercultural understanding based on the respect for human and social rights. The adopted “Skopje Agenda” consists of three-annual program of activities which strengthens the existing regional projects on cultural heritage inspired by the objectives of the Faro Convention with a final aim to improve the quality of life. The conference stressed the necessity to consider the cultural heritage in a comprehensive manner, as a generator of economic development, local tourism, effective spatial planning, all of which stimulate social cohesion. The vision we have for the development of our region was the inspiration to choose the promotion of youth participation as the third Chairmanship’s priority. It is considered that proactive inclusion of youth in policy- making trained and educated on the principles of the Council of Europe, will be an important factor in shaping the democratic development of the region of South Eastern Europe and
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Macedonian chairmanship Opens New Perspectives

will bring prosperity. The Ohrid process launched at the SEE Youth Gathering in Ohrid on 10 and 11 September 2010 provides principles for greater participation of young people in decision-making at local, national and regional levels. The Declaration adopted at this event “Ohrid Process Declaration: Youth & DecisionMaking: Towards Greater Inclusion and Ownership” acknowledges that SEE states have regional ambitions and can be engaged in regional projects, such as a possible gradual creation of Youth Council for SEE. Apart from this, the Macedonian Chairmanship accomplished to strengthen the regional cooperation in the fight against corruption and in providing access for Roma to personal identification documents. * * *

Whether the Macedonian Chairmanship is a success story it’s for the others to judge. However, 14 events organized in the country on many topical issues speak for themselves. The fact that Macedonia didn’t shy away to pick up some delicate issues for discussion, such as the access of Roma to identification documents, is a confirmation of our democratic reasoning and capacity. The conceptualization of the Macedonian Chairmanship’s priorities and program has proven that the 15 years of membership in this organization have started to pay significant dividends. Throughout this period the Macedonian society has transformed itself, but what is most important, the mind-set of the public administration and the Macedonian citizens has changed, basing their discussions and actions on the values and principles of the Council of Europe. The protection of human rights, the rule of law and the democratic functioning of the institutions are now in the focus of the public discourse. And that is not only the case with Macedonia, but with our neighborhood too. We have witnessed changes all around us. The Chairmanship of the Committee of Ministers of the Council of Europe was for us an experience that we could not afford to miss. It is our position that it has proved valuable for us and the Council of Europe as well, opening new perspectives for both.

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Human Rights & Legal Affairs

341.231.14:321.7(4)

“Human Rights Principles Should Underpin European Democracies”
Thomas hAMMARBERG
The essence of democracy is about ‘rule by the people’, about who participates in the decision-making process and how. This is not only a question of certain institutions or procedures, there are key principles involved. I believe it is important to understand these principles in order to avoid that the term ‘democracy’ is diluted of its true meaning and turned into an empty slogan. In a democratic society decisions must be under the control of all its members and all of them should be considered as equal. Popular control and political equality are the two principles which build democracy. This makes human rights principles - with their emphasis on governmental accountability and the rights of the individual - particularly relevant in the work for democratisation. Popular control would in the human rights language relate to the right to participation and the right to monitor those in power. Political equality relates to the principle of non-discrimination and effective equality to exercise one’s rights. In fact, human rights principles underpin the democratic processes. Some human rights are directly linked to the election procedures themselves such as the right to vote and the right to stand as a candidate. However, formal elections would be a sham without what constitutes an open debate: the freedoms of thought, expression and the media as well as the collective exercise of these rights through the freedoms of association and assembly. These freedoms are necessary for people to be able to monitor, criticise and influence - to exert popular control. At the same time, repression of peaceful dissent, even of the smallest minority, is an affront and hurts democracy. The respect for economic and social rights has also an impact on the efforts towards democracy. Political equality requires that people are enabled to take part in public decision-making – extreme poverty or lack of education are obvious obstacles, directly or indirectly. Indeed, empowerment is a more dynamic term for democratisation. When used it often refers to the need to empower people who otherwise would lack influence in politics - and sometimes even on their own
Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe.

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– Thomas hAMMARBERG –

lives. Empowerment strategies have been directed towards those who have been deprived of their rights. In other words, there is an obvious interrelationship between democracy and human rights. We have learnt that respect for all human rights is a necessary condition for a flourishing democracy, where everyone is empowered. We have also, through experience, learnt that such democracy is the best form of government for the protection of human rights. Democracy will be stronger the more human rights are respected. One area in which the human rights’ approach has added considerably to the democratic discourse relates to the limits of majority rule. A genuine democracy entails protection of minorities and thereby a willingness to compromise to certain minority interests. It must be possible for today’s minority to become tomorrow’s majority. In a democratic order we have decided to abstain from the consequences of total majority rule in order to secure a sustained protection of human rights. The European Court of Human Rights has often emphasised that pluralism, tolerance and broadmindedness are hallmarks of a democratic society. This signifies that “democracy does not simply mean that the views of the majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position”.1 Pluralism should be respected in various fields of life, for example as regards the freedom of expression, the media, education, religion, civil society and political participation. It is a major dilemma when the inter-dependent balance between human rights and the political process is brought into question in the name of democracy. This happens when parliaments begin to question the judgments of the judiciary and the right of minorities to exercise universal rights; when plebiscites are held to restrict the enjoyment of human rights in a discriminatory way; and when human rights are trampled down in the name of majority rule. The truth is that many European democracies still fail to listen to the minorities to the extent required by human rights norms. For example, one of the reasons why numerous policies addressing the situation of Roma have failed is that Roma themselves have not been able to fully participate in the planning and implementation of these policies. In fact, Roma and Travellers have often been barred from political participation altogether because of the lack of identity documents and statelessness. Many civil society organisations representing minorities have also been deprived of their freedom of association because of cumbersome or discriminatory registration procedures. In addition, the right of lesbian, gay, bisexual and transgender persons to organise peaceful demonstrations have been met with serious obstacles in several European countries.
1

Young, James and Webster v. the United Kingdom, par. 63 (13 August 1981).

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“human Rights Principles Should Underpin European Democracies”

Anti-Gypsyism, homophobia and xenophobia are problems that our democracies find difficult to handle, especially during election periods. The economic crisis and the resulting high unemployment rates have caused further feelings of insecurity even fear - among those who feel distanced from the political decision makers. This has been exploited by extremist parties which may don the cloak of democracy even when they actually aim to exclude groups of people from the political process and society. It is no accident that many such parties call themselves ‘democrats’ through the name of their party. An apparently democratic justification is given to a xenophobic and intolerant agenda. Nor do extremist parties hesitate to represent themselves as victims of exclusion. They also feed from the failures and deficiencies of representative democracy and often claim to oppose establishment politics and corruption. Yet we must not mistake populism for democracy. Majority rule cannot be exercised in a vacuum, but within a regulated framework based on human rights and fundamental freedoms. The underlying idea is that the agreed international and European human rights norms, when ratified, should stand above national and local politics. Everyone should be able to enjoy these rights without discrimination. Even the broadest majorities should not be able to adopt policies which violate the rights of certain individuals in society. In that sense, human rights norms restrict the decision power of elected political assemblies. The European Convention on Human Rights is already law of the land in all Council of Europe member states and has a constitutional status in some of them. This prevents or blocs decisions which in advance have been defined as unwanted. For instance, it is practically impossible today for any parliament in Europe to reintroduce the death penalty – we Europeans have decided to protect ourselves against such an unfortunate decision in case, for instance, a sudden public opinion would demand it. More generally, no state, group or persons have any right to engage in an activity aimed at the destruction of human rights or their arbitrary limitation. Article 17 on the prohibition of abuse of rights of the European Convention on Human Rights is very clear on this point. The European Court of Human Rights has deemed that a major objective of Article 17 is to prevent totalitarian or extremist groups from justifying their activities with reference to the European Convention.2 The protection of democracy may indeed entail that the activities of individuals or groups which politically oppose the values of democracy and pluralism are restricted. This is also one of the reasons why the exercise of the freedom of expression can be subjected to proportionate limitations when they are necessary in a democratic society and prescribed by law. Freedom of expression comes with duties and responsibilities including with regard to the rights of others and the need to
2

Ždanoka v. Latvia, par. 109 (17 June 2004).

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maintain the authority and impartiality of the judiciary. Even though the margin of appreciation for member states to restrict the freedom of expression is very limited, we can certainly act against hate speech and activities clearly aimed at the destruction of convention rights. Both the enjoyment of the freedom of expression and its necessary restrictions are essential components of a healthy democracy. Fundamental rights are universal; they underpin the fabric of society itself and must not normally be curtailed through a political debate. The principles of separation of powers and checks and balances should provide safeguards in this respect; this also presupposes the existence of a competent and independent judiciary to interpret human rights law. Separation of power between the executive, legislative and the judiciary is essential in order to avoid that too much power is concentrated in a few hands. I have seen with concern that some European governments interfere with the judiciary in politically sensitive cases instead of respecting and encouraging a fully independent court system. There are other aspects of checks and balances embedded in the human rights idea as well: that independent ombudsmen and other national human rights institutions are most valuable organs for an independent watch on those in power; that the media must be free to criticise; and that non-governmental organisations contribute significantly to pluralism in their advocacy role. The effective enjoyment of political and civil rights presupposes an inclusive form of governance in which people from all backgrounds are able to participate. A major problem, in my opinion, is that a large portion of the population is not part of the democratic processes at all. Poor and marginalised people have in reality very little say in the running of their country, district or municipality. They are deeply disadvantaged in their daily lives by widespread corruption. Surveys have shown that those who need protection the most are the least informed on how and where to complain or to seek support. Inclusive governance presupposes effective two-way communication about the decisions and directions a society should take. It is striking that while states are usually ready to invest remarkable sums of money for up-to-date surveillance technologies to address security concerns, a similar level of investment in new technologies is lacking when it comes to improving democratic participation and communication. Much can be done to improve two-way communication to map the real needs and expectations of all members of our societies and to make the public authorities accountable for the services they deliver. Today such communication can be more direct and participatory than in the past. Far fewer impediments should exist for accessing information kept by the authorities. The principles of equality and non-discrimination are the key features of human rights upholding the rights of everybody to participate in democratic governance. In fact, governments are bound by international accords to use their
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available resources to the maximum extent to counter discrimination. It is therefore a collective responsibility to address the conditions of those who are disadvantaged. They should not have to depend on charity; they should be given priority when decisions are made about the allocation of resources. It is crucial that parliaments ensure that these priorities are adequately reflected in the budgets they adopt. In fact, parliaments should carry out a human rightsbased budget analysis. This analysis would include a particular examination of how budgets impact on groups that are vulnerable to discrimination, for instance women, persons with disabilities, ethnic minorities, lesbian, gay, bisexual and transgender persons, older persons or religious minorities. Human rights-based budget analysis can also improve efficiency, accountability and transparency, notably through the use of performance targets and a participatory approach to budget formulation that involves not only ministries, but national human rights institutions and civil society organisations as well. In times of economic crisis, a human rights-based budget analysis which takes care of groups vulnerable to discrimination appears even more urgent. There are obvious signs that the economic crisis has a disproportionately negative impact on those already in a disadvantaged position. The protection of their rights, and especially social and economic rights, is therefore particularly important. If we fail here, there is a risk that the current economic crisis will be turning into a social crisis – with political repercussions. Local and regional authorities are at the forefront in facing this emergency. They are often directly responsible for services related to health care, education, housing, water supply, environment and policing even if many of them are not sufficiently equipped and resourced to deal with pressing human rights concerns. However, the local level also offers advantages for establishing a concrete two-way dialogue on political priorities. For example, the European Strategy for Innovation and Good Governance at the Local Level, prepared by the Council of Europe, could be an effective tool for developing a comprehensive approach to human rights-based governance at local level. The strategy promotes twelve principles which can foster local authorities’ accountability and people’s participation and could help link good governance and human rights more firmly. Wise leadership is needed to reinforce our liberties and rights so that we can pass on to future generations a more just society. Politicians should adopt human rights as guiding principles for their decisions. Multi-lateral co-operation built on human rights is necessary – there is a need for political determination and solidarity beyond narrow financial and economic interests and party politics. Finding viable solutions to enable all people to enjoy equal access to rights should be a priority for international, national and local actors. The effectiveness and image of governments at all levels would greatly benefit from such an approach.
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Continuous dialogue between representative and participatory democracy is necessary for developing inclusive governance. I have often argued that civil society groups and the media are key actors to protect democratic and human rights values. They are still. However, I note with deep concern that non-governmental human rights groups, including human rights defenders, are not always welcomed by governmental authorities but instead undermined and subject to unreasonable regulations and sometimes even harassment and violence. We should not forget the role of the media as watchdogs on the exercise of power - to report on corruption and other abuses and to offer platforms for democratic exchanges. This is however not exactly how the media function - or can function - in several member states today. It still happens that criminal procedures are initiated in response to critical media reports or that punitive compensation is demanded through civil court cases. Television is more or less monopolised by government interests in a number of countries, partly because of the politicisation of the allocation of broadcast licenses. There are also problems inside the media themselves: a growing tendency of commercialisation; ownership concentration into the hands of a few business tycoons; a breakdown of the self-regulation systems and the respect for the ethical codes. We need to promote ethical journalism which can reinvigorate the role of the media as defenders of human rights. This has to be matched with openness and transparency by the authorities who should be ready to improve public access to documents and information kept by the government. In totalitarian states there is no space to discuss what must be done to improve the system of governance. We have the opportunity to do so. But the fact that we have some democracy and some protection for human rights is no reason for complacency. We need to be self-critical. Only then can the remaining gaps be filled. It is in its nature that democracy can never be absolute; in reality the discussion will have to be about degrees. This is no excuse for undemocratic tendencies, but an encouragement to further efforts, over and over again. Responsible governance also requires the courage to stand up against groups which advocate intolerance and exclusion. There will always be a need to work for the deepening of democratic procedures and attitudes. With every new generation it will be necessary to ensure that even the basic democratic values are properly understood. Human rights principles, when applied in the daily political life, are our strongest ally in the continuous task of realising our democratic aspirations.

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341.176(4):341.231.14

The Council of Europe`s Role in the Promotion and Safeguarding of Human Rights Throughout Europe
Petter F. WILLE Introduction
When ”human rights” are referred to by Governments, NGOs or international organizations, it is almost always in the sense of human rights recognized in international instruments or national legislation. This legal approach responds to demands for the concrete protection of inherent rights. While classical International Law is founded on the doctrine of the sovereignty and equality of states, International Human Rights Law calls for each state to accept unilateral obligations to ensure the protection of rights of all individuals within its jurisdiction. The key relationship instituted by international human rights law is thus that between the state and the individual, not between two states or governments. At the universal level, the key text is the Universal Declaration of Human Rights, adopted by the UN General Assembly in 1948. Since then, dozens of treaties and declarations have supplemented the Universal Declaration. At the European level, the oldest and the leading organization for the promotion and protection of human rights and fundamental freedoms, is the Council of Europe. The Council of Europe was founded in 1949 by ten western European states. This was at a time when Europe was in ruins after the Second World War, and it was generally felt that a new-style of organisation was needed to ensure that totalitarianism would never get a second chance in Europe, and guarantee peace, democracy and human rights throughout the continent. Human rights, democracy and rule of law, have always been, and continue to be, the priorities for the Council of Europe. And there is no doubt that the Council is the leading European organisation for the promotion and protection of human rights. The Council of Europe standards on democracy, rule of law and human rights, also serve as a basis for EU enlargement. The fact that EU-accession

Ambassador Petter F. Wille, Permanent Representative of Norway to the Council of Europe.

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is provided for in the EU- Lisbon Treaty, is yet another proof that the Council`s leading role in this area is also recognized by the EU. EU accession to the Convention is a very important step for the promotion of human rights in Europe. It will create an unprecedented basis for a Europe of human rights, democracy and rule of law without borders, submitting the European Union’s legal system to independent external control, closing gaps in the legal protection of European citizens and putting the EU on the same footing as its member states. I will in the following give an account of the most important conventions and their monitoring mechanisms.

The European Convention on Human Rights
The European Convention on Human Rights, which was adopted in 1950 and entered into force in 1953, is the oldest of the international legal instruments for the protection of human rights. The convention protects civil and political rights and to a large extent contains the same set of rights as those protected by the UN Covenant on Civil and Political Rights. Its system of protection is the most developed and provides the richest source of international human rights jurisprudence. The Convention enshrines, among other things, the right to life, to protection against torture and inhuman treatment, to freedom and safety, to a fair trial, to respect for one`s private and family life and correspondence, to freedom of expression (including freedom of the press), thought, conscience and religion and to freedom of peaceful assembly and association. Protocols have added other rights, such as the abolition of the death penalty, protection of property, the right to free elections and the right to education. The supervisory system of the Convention is unique, with a court directly accessible to the individual and a compulsory jurisdiction for all contracting parties. Conditions of admissibility of complaints are set out in Article 35 of the Convention. Complaints are mostly dismissed if domestic remedies have not been exhausted, if the application has not been lodged within six months after the final national decision, if alleged human rights violations are insufficiently established (“manifestly ill-founded”), or if the complaints are incompatible with the Convention. The Court sits on a permanent basis, and is composed of as many judges as there are state parties. The judgments are legally binding on the state concerned. When the Court finds a violation, the Committee of Ministers (which is the Council of Europe`s decision-making body) monitors the execution of the judgment
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and ensures that the state take the necessary measures to prevent further violation. It also makes sure that just satisfaction awarded by the Court is paid to the applicant. With its highly legalistic character and its several decades of interpretative jurisprudence, the European Convention on Human Rights has resulted in the most sophisticated jurisprudence of any of the international judicial instruments created to protect human rights and fundamental freedoms. The key to understanding the Convention, lies in the case law of the Court, whose role it is to interpret the Convention. The Court`s case law covers a wide range of issues, such as disappearances and unlawful killings, torture and ill-treatment of detainees, lack of access to a court, lack of fair trial within a reasonable time, illegal telephone tapping, discrimination on the basis of sexual orientation, interference with property rights and freedom of expression. There is no doubt that the Convention system and the Court have been considerably successful. The Court has, however, to a certain extent become a victim of its own success with an ever-increasing case load. The number of new applications has increased from 8400 in 1999 to 57100 in 2009, which means an almost 600% increase in ten years. This development has resulted in a huge backlog which is approximately 140 000 cases in October 2010. One of the biggest challenges facing the Council of Europe is to take the necessary action to prevent the Court from collapsing. In this regard it is particularly important that member states do everything they can to resolve structural problems that result in a large number of repetitive cases. Furthermore, measures should be taken to stem the flow of clearly inadmissible cases. It is also important that the Court respects its subsidiary role and ensures that its case law is sufficiently consistent and clear. The entry into force of Protocol 14 to the Convention is also an important milestone. The protocol contains provisions aiming at enhancing the efficiency of the Court, and to reduce its workload. Among the measures provided for are simplified procedures for dealing with the easiest cases, and the introduction of a new admissibility criterion. The main responsibility is, however, with the member states. They must bring their legal systems and practice in conformity with the Convention. The Court has a subsidiary function. Effective remedies at the national level are thus of crucial importance. Strengthening the principle of subsidiarity through the effective implementation of the Convention in the domestic legal orders, is essential for ensuring the long-term effectiveness of the Convention system. A conference dedicated to this theme, which is an important part of the reform process of the Court, was held in Skopje on 1 and 2 October 2010. A particular challenge is the fact that court decisions in several European countries are often enforced only partially or with long delay. This is now one of
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the most frequent problems identified by the European Court of Human Rights. Flawed execution of final court decisions, must be seen as a refusal to accept the rule of law and is a serious human rights problem.

The European Social Charter
The European Social Charter was adopted in 1961. A revised charter was adopted in 1996. It sets out economic, social and cultural rights such as right to work, right to organize and to bargain collectively, right to social security and to medical assistance. An additional protocol from 1988 adds rights to equal opportunities and equal treatment for men and women in employment as well as rights to information and participation for workers. The revised Social Charter contains i.a. right to dignity at work, rights of workers to protection in case of termination of employment, right to protection against poverty and social exclusion and right to housing. The European Social Charter is monitored by the European Committee of Social Rights, which is an expert body. The monitoring is based on reports from the states parties on their implementation of the Charter. The reports are examined by the Committee, which makes recommendations. These recommendations are forwarded to the Committee of Ministers and form the basis for their resolutions and recommendations to states on how to implement the Charter. The revised Charter also established a collective complaints procedure. Such complaints are also examined by the European Committee of Social Rights which decides on the case and reports its findings to the Committee of Ministers. Finally, the Committee of Ministers adopts a resolution. If appropriate, it may recommend that the state concerned adopts specific measures to bring its laws and practices in conformity with the Charter. Many member states, however, have not accepted the collective complaint procedure. The European Social Charter is often referred to as the little “sister” of the far better known European Convention on Human Rights. This is due to the fact that the so-called second generation of economic, social and cultural rights have not been given the same priority as civil and political rights. This second generation of rights is often considered “non-justiciable” by states. The legal remedy system of the Charter is also different from that of the European Convention in many ways. First because the rights set out in the Charter are far less stringent than those laid down in the European Convention on Human Rights. Second, states parties, in accordance with Article 20 of the Charter-, save for five out of seven core articles, selectively ratify which rights they prefer to consider as binding, whereas with the European Convention, states may only limit their obligations by making specific reservations.
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It has, however, been widely recognized that the two sets of human rights, namely civil and political on the one side and economic, social and cultural rights on the other, are as indivisible and interrelated.

European Convention for the Prevention of Torture
While the prohibition of torture and ill-treatment is laid down in many human rights treaties and represent a peremptory norm of international law, (“ius cogens”), many states still systematically practice torture. This is why, apart from a mere prohibition and regular treaty monitoring procedure, an effective system to prevent torture was established with the Convention for the Prevention of Torture. The Convention sets up a Committee for the Prevention of Torture and Inhuman and Degrading Treatment (CPT). Representatives of the CPT are allowed to visit any place where persons are deprived of their personal liberty by a public authority. Such places are prisons, places of detention set up by police and military, psychiatric institutions, etc. During the visits, members of the CPT may inspect relevant documents, enter into prison cells and talk with prisoners in private. The CPT carries out regular as well as ad hoc visits in all member states of the Council of Europe. According to Article 11 of the Convention, the information gathered by the Committee in relation to visits, its report and its consultation with the party concerned, shall be confidential. Article 11 (2) provides for the publication of reports and stipulates that this should be done together with any comments by the state party if that is requested by the state. Most states now agree to publish the reports, but there are still some reports that have not been published. The CPT shall, in accordance with Article 12, submit a general report on its activities to the Committee of Ministers. The Committee also has other opportunities to discuss the activities of the Committee, inter alia through dialogues with the chair of the Committee.

European Framework Convention for the Protection of National Minorities
This convention was adopted in 1994 and was the first legally-binding multilateral convention for the Protection of National Minorities. As of October 2010 the number of states parties is 39. Some of the member states of the Council of Europe do not recognize minorities as such and have thus not become parties to this convention.
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Contracting parties undertake to pursue the Convention`s objectives through national legislation and policies. These include ensuring equality before the law, preserving and developing cultures, safeguarding identities, religions, minority languages and traditions. The Committee of Ministers is entrusted with the monitoring of the Convention, assisted by an Advisory Committee of independent experts. The monitoring is based on state reports and visits from the Advisory Committee, whose recommendations form basis for a resolution on implementation of the Convention by the State in question. The Committee has taken a critical position on various state reports and thus contributed to making the monitoring of the Convention quite efficient. The fact that member states monitor each other is, however, challenging and it is often difficult to succeed in avoiding politicizing the process when sensitive issues are at stake. This is particularly challenging in situations where a national minority in one member state has strong ties to a neighboring state. In some situations they are even citizens of the neighboring state.

European Charter for Regional or Minority Languages
This charter, which was adopted in 1992, has been met with less acceptance from member states than the Framework Convention. As of October 2010, only 25 states have acceded to the Charter. Its aim is to protect linguistic diversity as an essential element of the European cultural heritage based on a set of state obligations. The Charter`s emphasis is on promotion and on positive action by states. The monitoring is based on a state reporting procedure before the Committee of Ministers, which is assisted by an expert committee.

Council of Europe Convention on Action against Trafficking in Human Beings
Trafficking in human beings is the modern form of the old worldwide slave trade. It treats human beings like commodites to be bought and sold. The victims are put to forced labour, usually in the sex industry. Trafficking constitutes serious human rights violations such as inhuman and degrading treatment, violation of dignity and integrity, freedom of movement and in some cases the right to life. The Council of Europe Convention defines trafficking in human beings as:” the recruitment, transportation, transfer, harbouring or receipt of persons” that are coerced, threatened with force, abducted or lied to in order to exploit them.
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This convention is a powerful legal tool and is probably the most progressive international convention against trafficking. Its entry into force has been met with high expectations. The monitoring is based on two pillars; the Group of Experts (GRETA) which will regularly publish reports evaluating the measures taken by states parties, and the Committee of States Parties, ref. article 37 of the Convention.

Other Conventions
The conventions mentioned above are, far from, an exhaustive list of the human rights conventions adopted by the Council of Europe. A full list of treaties can be found on: http://www.conventions.coe.int In addition to the legally-binding treaties a great number of resolutions and recommendations have been adopted, of which the following should be mentioned in particular: The European Commission against Racism and Intolerance, (ECRI) has been established as an independent monitoring mechanism to combat racism, xenophobia, anti-Semitism and intolerance. ECRI is not established to monitor a specific convention, but is an independent human rights monitoring body. ECRI monitors phenomena of racism and racial discrimination by closely examining the situation in individual member states. ECRI draws up reports containing its analyses and recommendations as to how the countries concerned might deal with the problems identified. The reports are first transmitted as a draft to the country concerned for a process of confidential dialogue. The content of the report might be reviewed as a result of this dialogue. The report is then adopted in its final form and transmitted by ECRI to the member state concerned. In this process, the Committee of Ministers acts an intermediary. The report is then made public unless the government is expressly against its publication. In 2008, the Committee of Ministers adopted a Declaration on Council of Europe action to improve the protection of human rights defenders and promote their activities. The declaration i.a. calls on member states to take effective measures to protect, promote and respect human rights defenders. The Commissioner is invited to strengthen his role and capacity in order to provide strong and effective protection for human rights defenders. In March 2010, the Committee of Ministers adopted a Recommendation to member states on measures to combat discrimination on grounds of sexual orientation or gender identity.
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The Council has a programme for the promotion of children`s rights and for the protection of children from violence. More information can be found on: www.coe.int/children. It should also be mentioned that the Council is currently preparing guidelines on child friendly justice. Two other institutions of the Council also deserve special mention in an article on the organisation`s achievements in the area of human rights, namely the Parliamentary Assembly and the Commissioner for Human Rights.

The Parliamentary Assembly
The Parliamentary Assembly of the Council of Europe plays an important role in the promotion and protection of human rights. Article 23 of the Statute provides that the Parliamentary Assembly (PA) shall discuss and make recommendations upon any matter referred to it by the Committee of Ministers with a request for its opinion. While the accession, suspension or expulsion of a member, is under the competence of the Committee of Ministers, the PA must be consulted before such decisions are taken. This gives the PA a key role, which it in particular has played in connection with the accession of members from Central and eastern Europe. Since 1989 the new democracies in central and Eastern Europe have all requested membership. In that process, the Assembly has decided to ask the candidate states to formally undertake commitments in writing, which is mentioned above. In order to ensure that these commitments are honored, the Assembly has established special procedures on respect for commitments. These include regular monitoring by the Assembly`s Political Affairs Committee and the Committee on Legal Affairs and Human Rights. Rapporteurs have been appointed to report on the development in individual countries. The monitoring also includes public debates on the honoring of commitments. Currently, more than ten states are under monitoring, including Albania, Armenia, Azerbaijan, Bosnia and Herzegovina, Georgia, Moldova, Russia, Serbia and Ukraine. The Parliamentary Assembly`s monitoring exercise, has been successful and it indeed gives, an accurate overview of the situation of those Member States that are monitored by the Assembly itself.

The Commissioner for Human Rights
The Commissioner for Human Rights is an independent institution within the Council of Europe, mandated to promote the awareness of and respect for
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human rights in the 47 Council of Europe member states. The Commissioner is a kind of international ombudsman and co-operates with a broad range of international and national institutions as well as human rights monitoring mechanisms. The Commissioner`s most important inter-governmental partners include the United Nations and its specialized offices, the European Union and the OSCE. The Office also cooperates closely with leading human rights NGOs, universities and think-tanks. The Commissioner`s role includes contributing to the prevention of violations and implementation of domestic remedies, as well as disseminating information on Convention standards. In addition to an awarenessraising role, the Commissioner`s mandate also gives him a monitoring role. The Commissioner`s mandate is contained in Resolution (99(50), and provides (Art 3) for an active monitoring role. In effect, he is to contribute to the effective observance of human rights (Art 3 b), through the provision of advice (3 c), and inter alia identify possible shortcomings in the law and practice of member states (3e). The Commissioner`s monitoring role is intended to be informal, flexible and solution driven. The Commissioner must not only identify problems, but must constructively engage states in their solution. Broadly speaking, his monitoring role has been divided into the following areas: Through assessment reports on country situations, which contain recommendations, through informed debates on important human rights issues, through recommendations and opinions, as well as with presenting thematic reports and policy recommendations. From the very outset, the Commissioner has also sought to be active in Europe`s crisis areas, through visits to the affected areas. One of the advantages of this institution is that he can act swiftly and informally. This was, for instance demonstrated when the Commissioner, shortly after the armed conflict between Georgia and the Russian Federation in August 2008, visited the area and set down six principles for urgent protection of human rights and humanitarian security. These principles include: the right to return of those who fled or were displaced, ensure adequate living conditions for displaced persons until they can return, demining of warfare affected areas, torching of houses and looting must be stopped, prisoners of war must be protected and international presence and assistance are needed in the area affected by the conflict. The Commissioner for Human Rights plays an important role at the national level, including in cooperation with Ombudsmen and national human rights institutions, notably via the network established with contact persons within these structures. He seeks to engage in a permanent dialogue with member states and conducts official country missions for an evaluation of the human rights situation. The Commissioner cannot act upon individual complaints, but he can take initiatives on the basis of information he receives.
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Conclusions
The Council of Europe has a leading role in the promotion and protection of human rights, not only because the member states have adopted the most farreaching international human rights norms and standards, but also because of its monitoring system. It is often said that international conventions have little added value if their implementation is not monitored or followed by an international body. The Council of Europe applies a number of different monitoring methods, such as complaint procedures, fact-finding, state reporting, etc. Despite weaknesses, the Council has probably developed the most efficient monitoring system for human rights commitments of any international organisation. In a situation where priority should be given to implementation of existing norms rather than developing new ones, effective monitoring is of crucial importance. States often react negatively to critical views from monitoring bodies or when they lose a case before the Court. In a speech to the Parliamentary Assembly on 4 October 2010, Foreign Minister Westerwelle of Germany i.a. said that: “..it would be wrong to say that judgments have been passed against Germany or that Germany has been defeated in Strasbourg. In truth, citizens in Germany win when the Strasbourg Court interprets human rights protection more broadly than the courts in Germany have done”. These are wise words. At a time when there are strong voices indicating that the Court and other monitoring bodies go too far in their interpretation of the respective conventions and leave too little margin of appreciation to states, we should not forget the fundamental achievements that the Court and other forms of international monitoring represent. Human rights are still violated in all parts of the world, which means that there is no reason for complacency. In the Final Document adopted at the World Conference on Human Rights in Vienna in 1993, it is stated that:”,...the promotion and protection of human rights is a legitimate concern of the international community.” We must therefore continue to be vigilant and ready to speak up against violations, regardless of where they take place.

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341.645:341.231.14]-027.2

A Typology of the Pilot-Judgment Procedure1
Françoise TULKENS
The pilot-judgment procedure, according to a Dutch professor, “holds the promise of being the most creative tool the European Court of Human Rights has developed in its first fifty years of existence”2. I am not going to discuss here the purpose and the rationale3, nor the (strength or the weakness of the) legal basis and the character of this procedure. Judge Garlicki has excellently analysed its dual nature, as pilot judgments combine elements of cassation appeal with constitutional review4. In a nutshell, a pilot judgment (which is the fruit of the creativity of the Grand Chamber in the Broniowski v. Poland case of 28 September 2005) could be said “to address a general problem by adjudicating on a specific case”5. Two recent concerns seem to me to be at the origin of this new procedure and indeed these can direct its future development. On the one hand, in the matter of human
1

2

3

4

5

This text is a revised version of a paper delivered at a seminar on “Responding to systemic human rights violations – Pilot judgments of the European Court of human rights and their impact at national level” organised by the Human Rights & Social Justice Research Institute of the London Metropolitan University (Strasbourg, 14 June 2010). This reflects my personal view, and not that of the Court A. Buyse, “The Pilot Judgment Procedure at the European Court of Human Rights: Possibilities and Challenges”, Nomiko Vima (The Greek Law Journal), vol. 57, pp. 1890 ff., 2009, available at http:// ssrn.com/abstract=1514441, p. 1. ECtHR (GC), Broniowski v. Poland, judgment (friendly settlement - just satisfaction) of 28 September 2005, § 35: “(…) the pilot-judgment procedure is primarily designed to assist the Contracting States in fulfilling their role in the Convention system by resolving such problems at national level, thereby securing to the persons concerned the Convention rights and freedoms as required by Article 1 of the Convention, offering to them more rapid redress and, at the same time, easing the burden on the Court which would otherwise have to take to judgment large numbers of applications similar in substance”. This was repeated in ECtHR, Wolkenberg and Others v. Poland, decision of 4 December 2007, § 34. L Garlicki, “Broniowski and After: on the Dual Nature of Pilot Judgments”, in L. Caflisch et al. (eds.), Liber amicorum Luzius Wildhaber: human rights, Strasbourg views, Kehl-Strasbourg-Arlington, N.P. Engel, 2007, pp. 186 and 192. A. Buyse, “The Pilot Judgment Procedure at the European Court of Human Rights: Possibilities and Challenges”, op. cit., p. 1. Françoise Tulkens, Judge at the European Court of Human Rights and President of the Second Section.

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rights, we are confronted today in the Court with a certain change of scale: in addition to simple, singular, individual violations of Convention rights (which unfortunately subsist), there are complex, collective, massive violations – large scale violations. On the other hand, the Court is more and more sensitive and attentive to the execution of its judgments, as a judgment is not an end in itself; it is the beginning of a change, a promise for the future. In turn, the execution of judgments can, of course, play a strong preventive role – namely preventing the accumulation of other violations. These two (interrelated) concerns can explain why the Court is willing both to identify the underlying problem / cause of the violation (diagnosis) and to indicate, under Article 46 of the Convention, what steps should be taken by the State to remedy the situation. In doing this, it also assists the Committee of Ministers of the Council of Europe in its role of ensuring that each judgment of the Court is properly executed by the respondent State. The core of a pilot judgment is (1) the identification of a general problem and its cause and (2) the guidance given by the Court to the State concerned, i.e. what measures are necessary at the national level, which is a substantial departure from the purely declaratory approach the Court has followed so far. In this respect, the pilot-judgment procedure is both looking forward and backward6. The Court did not opt for a definition of the pilot-judgment procedure – and, of course, this choice could be discussed, especially in the light of the longer term question, raised at the Interlaken Conference, of codifying the pilotjudgment procedure7. For the time being, in order to facilitate the analysis of this new complex reality, I will try to propose, on the basis of the existing case law, a typology of the different situations which can or could receive, either fully or partially, the label of a pilot-judgment procedure.

A systemic situation
The identification of a systemic problem is the starting point in the pilotjudgment procedure, first used by the Court in the reasoning and the operative provisions of the judgment on the merits in Broniowski8. In this case, the expression “systemic situation”, “defect”, “dysfunction”, seems to have been a convenient shorthand to describe and delineate the particular problem affecting a whole class of individuals.
6

7

8

A. Buyse, “The Pilot Judgment Procedure at the European Court of Human Rights: Possibilities and Challenges”, op. cit., p. 8. See the Interlaken Declaration, adopted at the high-level Conference on the Future of the European Court of Human Rights held in Interlaken on 18 and 19 February 2010, available at www.coe.int/t/ dc/files/events/2010_interlaken_conf/default_EN.asp? ECtHR (GC), Broniowski v. Poland, judgment (merits) of 22 June 2004.

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But, as a matter of fact, what does systemic mean precisely? To my mind, it is something that relates to or affects a system as a whole. In the current case law, a systemic situation is a situation which affects, in principle, a large number of people and stems or results not just from an act or omission by a State Party but from a defective legal provision or a widespread administrative practice and which, in turn, points to legislative changes needed to resolve the problem, with accompanying administrative and budgetary measures. The third operative provision in the hutten-czapska v. Poland judgment of 19 June 20069, which concerned the system of rent restrictions, refers to “a systemic problem connected with the malfunctioning of domestic legislation in that: (a) it imposed, and continues to impose, restrictions on landlords’ rights, including defective provisions on the determination of rent; (b) it did not and still does not provide for any procedure or mechanism enabling landlords to recover losses incurred in connection with property maintenance”. The identification of a legislative violation appears particularly important when actions or omissions based thereon generate repetitive applications. Nevertheless, the high number of applications that could potentially be generated by a systemic problem is relevant. We can be of the view that while the quantitative aspect is a weighty consideration, this does not exclude applying the pilot-judgment procedure – perhaps in a lighter form – to situations where the number of pending or potential applications is relatively low. Moreover, is the procedure only suitable for simple, obvious violations of the Convention? No. As long as the problem can be identified with sufficient exactitude, there will be a starting point for the procedure. The complexity of a systemic problem may actually be a factor in favour of applying the pilot-judgment procedure, in that such cases could exceed the capacity of the international judicial process. In this respect, it must be emphasised that the Court’s information needs are much greater when operating the pilot-judgment procedure compared with the consideration of individual cases.

Length of proceedings
The Court is currently faced with different types of shortcomings in the functioning of domestic legal systems, in particular concerning the length of proceedings before national courts, which in fact remains the largest group of repetitive cases currently pending before the Court. To what extent is the pilotjudgment procedure, be it the full Bug River approach or some variant, transposable? The Lukenda v. Slovenia case of 6 October 2005 shows how the starting point of the procedure – the identification of the systemic problem – can be established
9

ECtHR (GC), hutten-czapska v. Poland, judgment of 19 June 2006.

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in such cases. In that judgment, having found violations of Articles 6 and 13, the Court then came to the application of Article 46: “It is intrinsic to the Court’s findings that the violation of the applicant’s right to a trial within a reasonable time is not an isolated incident, but rather a systemic problem that has resulted from inadequate legislation and inefficiency in the administration of justice” 10. Different terminology was used by the Grand Chamber in Scordino (no. 1) in 2006. There, when considering the problem of length of proceedings, the Court preferred the Bottazzi formulation, i.e. an “accumulation of breaches that constitutes a practice that is incompatible with the Convention”11. Both formulations concern the broader context. The one used in Scordino is no less forceful than “systemic problem”. The real challenge maybe is less to characterise excessive length of proceedings as a systemic problem, which it clearly is, than to decide how to proceed from there – notably, as regards the structure of the reasoning, the adjournment of similar cases.

quasi-pilot judgments
Against this background, it should be noted that the expression “systemic situation” has recently been used by the Court in contexts other than the full pilot-judgment procedure12, what judge Garlicki and also professor Leach call “quasi-pilot judgments”13, which develop a more flexible reaction to a systemic situation. For example the Driza v. Albania judgment of 13 November 2007, concerning the restitution of unlawful nationalised property14, or the Gülmez v. Turkey
10 11 12

13

14

ECtHR, Lukenda v. Slovenia, judgment of 6 October 2005, § 93. ECtHR (GC), Scordino (no. 1) v. Italy, judgment of 29 March 2006, § 224. For example, ECtHR, Urbárska Obec Trenčianske Biskupice v. Slovakia, judgment of 27 November 2007. The complaint related to the compulsory letting of the applicants’ land for use as allotments (small plots of land, situated within or close to cities and towns, that are made available to individuals and families to grow vegetables and fruit (jardin d’ouvrier)) and the compulsory transfer of title to the lessees. Both the imposed rent and the compensation were found to be so low as to contravene Article 1 of Protocol No. 1. Under the heading “Article 46 of the Convention”, the judgment then looks to the wider context (“the violation (…) originated in a problem arising out of the state of the Slovakian legislation”) and refers to the (admittedly modest) consequences thus far for the Court (“has affected a number of landowners (…) [s]everal other applications concerning the same issue are pending before the Court”: emphasis added). It considers that “the problem in issue is of a systemic nature” (§ 148). L Garlicki, “Broniowski and After: on the Dual Nature of Pilot Judgments”, op. cit., p. 191; Ph. Leach et al., “Can the European Court’s pilot judgment procedure help resolve systemic human rights violations? Burdov and the failure to implement domestic court decisions in Russia”, human Rights Law Review, 2010, p. 358. ECtHR, Driza v. Albania, judgment of 13 November 2007, where the systemic problem is on a bigger scale (restitution of unlawfully nationalised property, or compensation in lieu). While the judgment finds violations of several provisions, it is the failure of the authorities to provide an effective remedy that is relevant for present purposes. Having found that the situation gave rise

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judgment of 20 May 2008, concerning prison discipline procedures15. So it can now be said that the phrase “systemic problem” has acquired a special connotation in Convention proceedings. Its use in a judgment, even if not all the other elements of the pilot-judgment procedure are present, puts the respondent State on notice that the Court’s concerns are not limited to the individual case and that it is bound to remedy the violation in a holistic way. In so doing, it draws the attention of the Committee of Ministers (along with other Council of Europe authorities) to the fact that a systemic problem underlies the particular case. For example, the Estrikh case16 was one of many applications brought against Latvia concerning Article 5 of the Convention. Several similar judgments had already been delivered by the time this judgment was adopted, and dozens more applications were at communication stage. Wishing to send a strong message to the authorities, the Court observed that the number of applications “seems to disclose a systemic problem”. Although obiter, the message was well understood by the Government, which has begun to propose friendly settlements in the other cases. Flagging the broader cause like this complies with the Committee of Ministers’ request in Resolution Res(2004)317 and means that the execution of the judgment will be supervised as a matter of priority18. The leverage that the Committee of Ministers can exercise vis-à-vis the respondent State to take appropriate, timely
to a violation of Article 13 in conjunction with Article 1 of Protocol No. 1, the judgment then comes to the application of Article 46 and speaks of “(…) shortcomings, in the Albanian legal order, as a consequence of which, an entire category of individuals have been and are still being deprived of their right to the peaceful enjoyment of their property, stemming from the nonenforcement of court judgments that awarded compensation under the Property Act” (§ 122). The consequences here for both the Court and the State are more serious: “The escalating number of applications is an aggravating factor as regards the State’s responsibility under the Convention and is also a threat for the future effectiveness of the system put in place by the Convention, given that in the Court’s view, the legal vacuums detected in the applicant’s particular case may subsequently give rise to other numerous well-founded applications.” (ibid.). ECtHR, Gülmez v. Turkey, judgment of 20 May 2008. The Court found that prison discipline procedures in Turkey failed to meet the requirements of Article 6 (civil head), and the quality of law requirement under Article 8. Legislative reforms in 2005 addressed the latter problem only. After the substantive analysis come remarks under Article 46: “The Court’s conclusions as regards the complaint about the lack of a public hearing suggest that the violation of the applicant’s rights under Article 6 of the Convention originated in a problem arising out of the state of the Turkish legislation, (…) Several other applications concerning the same issue are pending before the Court. Without prejudging the merits of those cases, the above facts indicate that the problem at issue is of a systemic nature” (§ 60). ECtHR, Estrikh v. Latvia judgment of 18 January 2007. Resolution Res(2004)3 on judgments revealing an underlying systemic problem, adopted by the Committee of Ministers on 12 May 2004, at its 114th Session. Rule 4 of the Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements, adopted by the Committee of Ministers on 10 May 2006, at the 964th meeting of the Ministers’ Deputies.

15

16 17

18

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action should, in principle, be boosted where both Convention organs concur as to the systemic nature of the problem.

A structural situation
However, the term “systemic” might not, strictly speaking, be completely apposite in every situation. A problem may be more a question of structures than of systems in the normal meaning of the word. In general, that which is structural is aimed at the organisation, the regime, as distinct from or opposed to that which is context-specific (conjoncturel). This second type of situation the Court is confronted with is where the problem is the result of a structural breakdown, usually due to a lack of sufficient resources, or inefficient organisation. Remedial measures in this context are more dependent on budgetary means. Take, for example, the first pilot judgment against Russia, Burdov (no. 2) of 15 January 2009, which concerned the non-enforcement of final domestic judgments. The Court considered that the large number of applications was indicative of a “persistent structural dysfunction” and a practice incompatible with the Convention19. A similar example is the chronic overcrowding and / or widespread poor prison conditions. In the case of Maria Atanasiu and Others, concerning properties nationalised during the communist era in Romania, in which a hearing was held on 6 June 2010, the Court delivered a judgment on 12 October 2010. It found a violation of Article 1 of Protocol No. 120. Furthermore, having previously identified a structural problem in legislation and practices concerning restitution in respect of nationalised properties, the Court held that Romania must take general measures to secure effective protection of the rights guaranteed by this provision and adjourned examination of all applications stemming from the same general problem21. Within this category, we find also quasi-pilot judgments. In the Sarica and Dilaver v. Turkey judgment of 27 May 2010, the Court held that the widespread practice in Turkey of de facto expropriation by the state represented a structural problem and was contrary to the Convention. This practice enabled the Turkish authorities to occupy property without any formal declaration of transferring ownership. The practice forced people to start Court proceedings in order to have such occupation of land quashed or in order to receive compensation. Under article 46 of the Convention (binding force and execution of judgments) the Court indicated that Turkey should also take general measures in order to
19 20 21

ECtHR, Burdov (no. 2) v. Russia, judgment of 15 January 2009, §§ 129 ff. ECtHR, Maria Atanasiu and Others v. Romania, judgment of 12 October 2010, §§ 178 ff. Ibid., § 241.

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make the process of expropriation less unforeseeable and arbitrary and to secure compensation. It is also an example of quasi pilot-judgment procedure.

An endemic situation
The term “endemic situation” is used by the Court to describe widespread, repeated shortcomings, systemic or structural or caused by a combination of different factors. Strictly speaking, endemic means something which rages continuously in a country. In the Xenides-Arestis judgment of 22 December 2005, the Court dealt with a case of denial of access to property in Northern Cyprus and the lack of remedies at national level. The judgment reflected that this was a problem affecting a large number of people22. Surprisingly, the problem of non-execution of final binding domestic judgments is endemic in a number of Contracting States, but in particular the Russian Federation, Ukraine and Moldova. The number of such cases before the Court is rising steadily and is a very serious concern: the non-execution of domestic judgments is a real “gangrene” or “cancer” in the judiciary because it destroys justice, rendering it illusory. The approach to date has been to deliver a lengthening series of repetitive judgments. Although the differences between this problem and the systemic problem in Broniowski are evident and fundamental (open-ended category of potential applicants, no single root cause, many cases already decided, uncertain prospects for effective resolution within reasonable timeframe), the case for some sort of pilot approach is strong. Furthermore, for instance in Ukraine23, and also in Moldova, the systemic / structural nature of the problem is beyond dispute and is acknowledged by the national authorities. A well-reasoned judgment framing the various problems and exhorting the States to take appropriate action would give considerable impetus to the execution process (which is already underway) and carry greater weight with the national authorities themselves. This is the effect of the Olaru and others v. Moldova judgment of 28 July 200924.

22 23

24

ECtHR, Xenides-Arestis v. Turkey, judgment of 22 December 2005, § 38. It is exactly in these terms that the Committee of Ministers discusses the problem. In relation to Ukraine, see Interim Resolution CM/ResDH(2008)1. For Russia, see CM/Inf/DH(2006)19rev3, dated 4 June 2007: “Non-enforcement of domestic judicial decisions in Russia: general measures to comply with the European Court’s judgments”. ECtHR, Olaru and others v. Moldova, judgment of 28 July 2009, §§ 53 ff.

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Conclusion
Many other systemic, structural or endemic problems are apparent in the cases decided by and pending before the Court – for instance, excessive length of detention on remand. It is not my intention to speculate as to if and how the pilot-judgment procedure might be applied to such cases. The decision to apply the procedure, as well as the manner of its application, will be guided by considerations of feasibility and expediency, rooted in the nature and context of the problem. I would simply stress that the category of potential pilot cases is not a closed one. It encourages the Court to systematically give consideration to the possibility of taking a broader approach to problems and this attitude is in full conformity with the philosophy of subsidiarity which is at the heart of the Convention. But, as always, a balance is necessary and I agree with Lech Garlicki that, and I quote him: “[a]n inflation of pilot judgments would be counterproductive”25.

25

L Garlicki, “Broniowski and After: on the Dual Nature of Pilot Judgments”, op. cit., p. 191.

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341.645:341.231.14

Strengthening Subsidiarity by Integrating the Court’s Case-Law: The Role of the Constitutional Court and Constitutional Right to Appeal
Mirjana LAZAROVA TRAJKOVSKA1 Introduction
At the beginning of the 21st century one cannot speak of a modern democratic state without instilling human rights as the highest value of the rule of law. In addition, the relationship between the individual and the state is very dynamic and fluid. The general precondition for the functioning of a state based on the rule of law in which human rights are properly placed and valued, is a free and democratic state, which, together with various non-governmental institutions, informs and educates its population and which, specifically, encourages the development of forms and methods of protection of guaranteed human rights and freedoms. One of the most eminent French constitutionalists (‘le doyen’ Georges Vedel) put it simply by saying that the control of constitutionality is “part of the contemporary comfort of the democratic states” and that “France has reached that following the

1

Views expressed in this text are my own and do not necessarily reflect those of the Court. I was invited by the editorial board of the journal Crossroads to write an article on the Macedonian Chairmanship of the Committee of Ministers from April to November 2010. During the Macedonian Chairmanship, on 1 and 2 October, Macedonia was host country for a Conference that focused on the principle of subsidiarity as an important element of the Convention system, but also as an important element of the Interlaken Declaration. My participation at this Conference was on the topic “Ways and means to recognise the interpretative authority of judgments against other states”. I am aware of the complexity and importance of the principle of subsidiarity in this text and I will focus on the topic of strengthening the principle of subsidiarity by integrating the Court’s case-law, with special reference to the Role of the Constitutional Court and the constitutional right to appeal. Being a judge of the European Court of Human Rights and a former judge of the Constitutional Court of the Republic of Macedonia, the real challenge for me is to write on a topic that will combine both experiences. In my approach I will try to remain within the limits of my impartiality. Mirjana Lazarova Trajkovska, Judge of the European Court of Human Rights.

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example of its European neighbours, not because it is fashionable but in order to have a better life”.2 Human rights are protected in different ways in different legal systems: mostly through judicial control, through proceedings aimed at assessing the constitutionality and legality of different legal regulations, through constitutional action, through the work of the Ombudsman, through law practice, and through other forms of legal assistance. It is difficult to imagine a legal system of the continental type – with a written Constitution – without constitutional and judicial protection and without control of the constitutionality and legality of the legal system. In addition, the level of protection of human rights is often clearly determined by the level of independence of the judge’s position. A famous German philosopher on law Gustav Radbruch, put it this way: “The function of a judge is a daily portion of bread, water to drink and air to breathe to every court, law and justice which lie beneath the vault of the rule of law and a state based on the rule of law; and therefore the question of the independence of judges is not only a legal issue, it is also an issue of the general culture of a community.”

Constitutional protection of human rights and freedoms
Of all the above-mentioned methods and forms of protection of human rights, here we are particularly interested in the protection that can be provided by constitutional courts in this field. However, for a constitutional court to exist there must be a written constitution as the first prerequisite for the constitutional and judicial review of human rights protection.3 This is a prerequisite for defining constitutional remedies for the protection of human rights and freedoms. Therefore, bearing in mind the principle of direct regulation of human rights and freedoms, they must be clearly defined in the constitution of the state, especially taking into account the principle of the prohibition of restrictions and denial of human rights and freedoms contrary to the Constitution. Of all the Member States of the Council of Europe (now 47) only the United Kingdom has no written constitution. That Member State, however, adopted the Human Rights Act in 1998, which clearly states that the courts should take into account the compatibility of certain laws with this Act.4 Nevertheless, constitutional order
2

3

4

Simone Veil “The Constitutional Justice in France – Current State of Affairs and Perspectives – Constitutional and Judicial Protection – Reality and Perspectives (Skopje) Obnova Kočani 2004 See, J.-F. Flauss, “Human Rights Act 1998: Kaléidoscope”, in: Revue française de droit constitutionnel No 48 2001/4, P.U.F., Paris, p. 695 f., or P. Pernthaler, Allgemeine Staatslehre und Verfassungslehre, 2nd rev. ed., Springer Verlag, Vienna, 1996, p. 174 (See Art. 4 of the Human Rights Act 1998: http://www.opsi.gov.uk/acts/acts1998)

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and the guarantees of human rights and freedoms are not per se a guarantee of their respect and implementation. The term constitutional judiciary in its narrower sense refers to the judicial control of the constitutionality and legality of regulations, and in a broader sense, also to the resolution of some other issues that have fundamental constitutional and legal significance (disputes over jurisdiction, the responsibility of the highest state authorities, in some constitutions opinions regarding the constitutionality of international treaties, constitutional complaints, etc.) This defines the concept of the constitutional judiciary in a material sense, while in a formal sense we assume the existence of a special body that performs solely a constitutional and judicial function. Constitutionalism and the principle of the rule of law have strengthened the sense of the existence and jurisdiction of constitutional courts. Human rights protection through the abstract jurisdiction of the Constitutional Court may have a preventive (primary) and a repressive (additional) role. With regard to preventive control, the Constitutional Court can act through opinions on the unconstitutionality of an act before it is passed. For example, the Constitutional Court of Slovenia gives opinions on the constitutionality of international treaties before Parliament ratifies them. The Constitutional Council of France has similar jurisdiction. A more common example is the control of constitutionality and human rights protection through the repressive model. As regards the subjects to whom a sanction in the repressive model of the constitutional and judicial protection of human rights applies, it can be addressed and applied to all (erga omnes) or only to the participants in given proceedings (inter partes). The first model of functioning of constitutional court decisions is related primarily to the abstract constitutional and legal jurisdiction of the constitutional court, which includes the constitutionality and legality of laws and other regulations and acts, while the inter partes model refers to the direct protection of human rights of a specific complainant in specific proceedings and is primarily related to constitutional complaints. The principle that constitutional court decisions are binding and final applies in both cases. At the national level, a constitutional court is the highest authority with regard to the protection of constitutionality and legality, but also with regard to the protection of human rights and fundamental freedoms in systems in which constitutional complaints are accepted (as in Armenia, Croatia, Germany, Italy, Moldova, Serbia, Slovenia, Macedonia, and some other countries). According to Professor Siegfried Bros, the Federal Constitutional Court of Germany, implementing the function of “an appellate court, has expanded the number of instances of Germany’s jurisdiction (a total of five) so as to include a special
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constitutional and judicial instance for reviewing the constitutionality of judicial decisions.”5 The case law of the European Court of Human Rights has shown that the existence of constitutional complaints as an option for protecting human rights in the state is a very useful method. In modern states in which the rule of law and the development of democratic institutions are given pre-eminence, it is important to provide a mechanism for protecting individual rights, or more precisely, to ensure access to the guardian of constitutionality and access to the Constitutional Court for an individual who believes that his constitutionally guaranteed rights and fundamental freedoms have been violated. In its judgments, the European Court of Human Rights has always emphasised and continues to emphasise the importance of domestic legal remedies which would ensure access to justice within a reasonable time. Therefore, “slow justice equals no justice.”

Judgment in Kudla v. Poland and the effectiveness of domestic legal remedies
But even the European Court of Human Rights, considering the content of the complaints and the actual situation in the States Parties to the Convention, took time to urge that domestic remedies for human rights be better elaborated, especially with regard to the length of proceedings. Thus, in 2000 the Court changed its legal position and began linking the violation of the right to a reasonable duration of judicial proceedings under Article 6 (1) to Article 13 of the Convention. Article 13 provides that everyone has the right to an effective legal remedy before domestic bodies. The change in the legal viewpoint of the Court is embodied in the well-known judgment in the Kudla v. Poland case.6 In that case the court linked the excessive length of the proceedings mainly to the question of whether there was a domestic legal remedy by which the applicant could effectively challenge the excessive length of the proceedings before the domestic authorities. It is no accident that the issue of the effectiveness of domestic remedies was raised in proceedings relating to unreasonably lengthy proceedings. It was noted that prior to 2003, more than 50% of all Strasbourg Court judgments concerned the unreasonable length of proceedings before the courts and authorities of States Parties to the Convention, whereas this percentage has been reduced to 30% since then. This
5

6

Dr Siegfrid Bros “On the position of a Constitutional Court in a modern state under the rule of law - the experience of the Federal Constitutional Court of the Federal Republic of Germany” – Constitutional and Judicial Protection – Reality and Perspectives (Skopje) Obnova Kočani 2004 Kudla v. Poland (Grand Chamber judgment 30210/96 of 26 October 2000): http://www.echr.coe.int

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point is important for two reasons: firstly, because it highlights the existence of a general problem, common to many European states, and secondly, because it concerns a matter closely related to the effective right to a fair trial.7 In the case of Kudla v. Poland, the applicant complained about the unreasonable length of proceedings in a criminal case, in violation of Article 6 (1), and about the fact that the possibility of compensation for the unreasonable length of the proceedings did not exist in Poland at the time, which he believed was a violation of Article 13 of the Convention. Before the verdict in this case, the Court had held that the very fact that the appeal was considered in the context of Article 6 (1) of the Convention meant that there was no need to consider the violation in relation to Article 13 because Article 6 (1) constitutes a lex specialis in relation to Article 13. However, this case was different as the Court concluded that there were two separate issues: firstly, whether there had been an unjust delay in the proceedings; and secondly, whether the applicant had had an adequate and effective remedy against that delay. The Court concluded that an appropriate remedy did not exist in Polish law and that this had resulted in the unreasonably lengthy duration of the proceedings before the national courts (Article 6 (1)), and in a violation of Article 13 because there was no effective remedy against the violation of Article 6 (1). After that judgment, the Court applied the precedent established in the Kudla case to other judgments (e.g. Lukenda v. Slovenia), informing Member States that “to prevent future violations of the right to a trial within a reasonable time, the Court encourages the respondent State to either amend the existing range of legal remedies or to add new remedies so as to secure genuinely effective redress for violations of that right”. The characteristics of an effective remedy are to be found in the Court’s case law.

Constitutional complaint as a separate procedure for the protection of individual rights and freedoms
The case of Kudla v. Poland is primarily linked to a legal remedy which concerns the effectiveness of domestic bodies. However, it is very important for the Court that states should have a clearly established system for the protection of the human rights and freedoms guaranteed by the Constitution and Convention. Therefore, given the experience of the High Contracting Parties to date, we now attach particular importance to constitutional complaints among the special procedures for protecting human rights and freedoms. In countries which have accepted this method of protecting human rights and freedoms it
7

Luis Lopez Guerra “Unreasonable delay” – Skopje, September 2009

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represents a relatively new institution and a special legal instrument, and in most cases it has proved to be an effective legal means of protecting human rights and freedoms. Typically, a constitutional complaint may be filed by any natural person or legal entity that believes that a certain legal act by state bodies, bodies of local self-government or holders of public office has infringed a right or freedom which is constitutionally guaranteed. In some constitutional systems (Slovenia, Macedonia), an Ombudsman also has this right in relation to a specific case he is working on and if the applicant to whom the constitutional complaint refers agrees to it. A constitutional complaint may have a very wide scope and it can constitute the basis for proceedings before the Constitutional Court in connection with any constitutionally guaranteed right or freedom (Croatia, Germany, Serbia, Slovenia), or it may have a limited reach and apply only to rights and freedoms explicitly singled out in the Constitution (Macedonia). As with proceedings before the European Court of Human Rights, a constitutional complaint cannot be filed at any stage in the proceedings taking place before other bodies or courts. The most common preconditions, except with regard to the length of proceedings, are as follows: before initiating proceedings before the Constitutional Court, all domestic remedies must be exhausted; proceedings may only be initiated within a certain period from the service of the final decision (in Slovenia within 60 days and in Macedonia within 2 months of the service of the final decision, but not later than 5 years after the date of the violation). A constitutional complaint must be submitted in writing, stating precisely the act that is being challenged and on which the complaint is based and which constitutes the basis for the human right violation. According to a study done by the Venice Commission for Democracy through Law, constitutional courts dismiss over 90% of the appeals as inadmissible. 8 One such court is the Constitutional Court of the Republic of Macedonia, which, despite many years of implementation of this remedy has done little to increase its efficacy. The Constitutional Court itself has not helped to make this remedy popular with citizens.

8

See the documents: CDL-AD(2004)043 Opinion on the Proposal to Amend the Constitution of the Republic of Moldova (introduction of the individual complaint to the Constitutional Court) adopted by the Venice Commission at its 61st Plenary Session (Venice, 3-4 December 2004); CDL(1997)035 Opinion on the possibility of an individual complaint to the Armenian Constitutional Court and on interpretation of Article 7 of the Draft Law on Organisation of Judiciary of the Republic of Armenia.

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Evaluation of an individual act
A constitutional court decision on a constitutional complaint refers to and affects only the case at the origin of the constitutional complaint. The scope of the decision issued on the basis of a constitutional complaint is limited only to that specific case, and it raises the issue, both in theory and practice, of “what would be the role and impact of such a decision”. The decision is binding only on the applicant, the judicial or administrative authorities whose act has been challenged and also possibly on some other public body that might deal with the same issue in the future, until the specific situation that the case arose from has changed.9 Taking into account our experience in the matter to date, there are three ways in which the Constitutional Court may make its decisions with regard to constitutional complaints: it may issue a decision on the merits; it may set aside an individual act; or it may request that the proceedings be reinitiated or the decision changed without setting it aside. In Canada and Cyprus, the Supreme Court (which also has the jurisdiction of a constitutional court) may render decisions on the merits, but only with regard to court decisions. The Constitutional Courts of Slovenia and Spain also have such jurisdiction. However, in most Member States of the Council of Europe, deciding on the merits is not the rule, and the Constitutional Court may decide to return the case to the lower courts to render new decisions.10 If the court decides to set aside the last court decision, it also requests that a new decision on the case in question be rendered. The constitutional courts in Austria, Bosnia and Herzegovina, Croatia, Germany, Portugal, Slovenia and Slovakia have the power to make such decisions. If the Constitutional Court only returns the case to the highest ordinary court to reopen the proceedings, without setting aside the unconstitutional decision (Azerbaijan), it is questionable whether the highest ordinary court will follow the orders in the decision received from the Constitutional Court. An important component of the Constitutional Court’s decisions on constitutional complaint cases involves the following possibility: if the Constitutional Court finds that the cause of the human rights violation in a specific case is an unconstitutional provision of a law or by-law, the court may initiate the assessment of the constitutionality of that provision or quash or abolish it on the basis of the proceedings in question. In this way, based on an individual complaint, proceedings may end in a decision that has an erga omnes effect.
9

10

R.Jaeger, S. Broß, “Die Beziehungen zwischen den Verfassungsgerichtshöfen und den übrigen einzelstaatlichen Rechtsprechungsorganen, einschließlich der diesbezüglichen Interferenz des Handelns der europäischen Rechtsprechungsorgane”, report for the XIIth Conference of European Constitutional Courts, p.27. CDL-INF(2001)009 Decisions of constitutional courts and equivalent bodies and their execution.

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A decision on an individual complaint may in certain cases have an effect that is not limited to that case; for example, under Montenegro’s Constitution, when the Constitutional Court rules on an individual act on the basis of which some right or freedom of a person has been violated and only one person has initiated proceedings before the Constitutional Court, the decision may apply to all those affected. In some cases, the German Constitutional Court may decide that future administrative or judicial acts which are the same as the one quashed by the Constitutional Court should also be considered unconstitutional.11 This approach is very important because in this way the Constitutional Court, while deciding on a specific act, still provides some general guidelines as to how courts or administrative authorities should approach a particular legal situation while acting in accordance with the Constitution.

The relationship between the Constitutional Court and ordinary courts and procedures regarding the protection of human rights
In proceedings initiated by complaints and raising the issue of the protection of a specific human right or freedom, it is very important for the Constitutional Court to act quickly and correctly. That is why deadlines for deciding on constitutional complaints are usually shorter than deadlines relating to abstract constitutional and judicial jurisdiction. Therefore, cooperation between the Constitutional Court and ordinary courts is a very important dimension of the effectiveness of the protection of human rights and freedoms. Ordinary courts apply laws on a daily basis and are able to compare laws and by-laws with the Constitution and note the existence of the unconstitutionality or irregularity of a regulation. In such cases, in the majority of the Member States of the Council of Europe, a judge with an ordinary court of any instance can stop proceedings in a specific case and initiate a procedure to determine the constitutionality of a law before the Constitutional Court. This possibility exists in Croatia, Germany, Italy, Serbia, Slovenia and Macedonia. This approach, based on the abstract jurisdiction of the Constitutional Court, plays a very important preventive role regarding the protection of fundamental rights and freedoms. However, the main issue with regard to the Constitutional Court and ordinary courts is how to connect them while avoiding misgivings about a relationship of superiority and control. Garlicky believes that the tension between the Constitutional Court and the Supreme Court is more present and more
11

R. Jaeger, S. Broß, Ibid, p. 27.

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noticeable in a system of concentrated constitutional authority.12 As specialized courts, constitutional courts are usually outside the remit of ordinary courts. With regard to constitutional complaints, constitutional courts not only have the role of evaluating constitutionality and legality, but they must also decide on specific cases, and sometimes a decision on a single complaint concerns the method of application of a specific regulation by courts of different instances. Commenting on these situations, the Venice Commission said: “The possibility to review the decisions of ordinary courts may create tensions, and even conflict between the ordinary courts and the Constitutional Court. Therefore it seems necessary to avoid a solution that would envisage the Constitutional Court as a ‘super-Supreme Court’. Its relation to ‘ordinary’ high courts (Court of Cassation) has to be determined in clear terms.”13 In France “there is no hierarchy between the Constitutional Council and the other two high courts (the Court of Cassation and the Council of State). In addition, they have long played a major role in the protection of human rights and fundamental freedoms.”14 Each of these different judicial instances is inspired by the other two. However, one of the bases for possible conflict between the two highest courts in a state often arises from case overload and the constant “spillover” of complaints from one institution to another.

Problem of overburdening the Constitutional Court
The issue of overburdening the Constitutional Court often arises in systems where constitutional complaints have been accepted and introduced. States that have accepted this legal instrument use various working methods to overcome case overload. The most commonly used filters are those that allow the Court to separate, at the very beginning, applications that have no merit and which would end unsuccessfully from those applications that raise some important issue. In systems where constitutional complaints are accepted, the methods used are primarily directed at the proper management of applications received. The United States Supreme Court has accepted jurisdiction to consider individual complaints, but has no obligation to review all of the complaints received and may choose applications which raise important issues relating to the protection of constitutional order. However, this method is quite different from the method of accepting all individual constitutional complaints, which is characteristic of
12

L. Garlicki, “Constitutional courts versus supreme courts”, International Journal of Constitutional Law 2007 5(1), Oxford University Press, Oxford, in: http://icon.oxfordjournals.org/cgi/content/ full/5/1/44#FN59#FN59, accessed 11 February 2009.

13

CDL-AD(2004)024 Opinion on the Draft Constitutional Amendments with regard to the Constitutional Court of Turkey.
Simone Veil, Ibid p. 42.

14

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European countries. The recommendation made by the European Court of Human Rights through its case-law is that, for the protection of human rights, states should have filter mechanisms that are as stable as possible. The large number of constitutional complaints and the small number of constitutional judges who issue decisions on them are two related problems. Germany’s practice shows that constitutional complaints which are considered as having no merit and little chance of success are entered in a separate “general register” and not in the records of the court. The applicant who submitted the constitutional complaint is notified. If the applicant expresses interest and amends or modifies evidence or submits new evidence in the proceedings which results in his constitutional complaint being regarded as having merit, the case is then transferred to the records of the court if it is not found to be inadmissible. This is the method chosen by that court. However, the most effective method of relieving caseload is the constant education of the courts below, and fostering awareness that the efficiency of the court is something that depends on each judge individually and on all of them together. Judges have to follow the case-law of the European Court of Human Rights and the case-law of the Constitutional Court and the Supreme Court. Otherwise, the number of cases will constantly be on the rise. One of the recommendations of the Venice Commission is to employ a larger number of people to assist the judges.15 The secretariat of the court or its professional service may advise the court at the very beginning of proceedings relating to constitutional complaints and separate cases it believes to be without merit, so that the court spends less time on such proceedings. “Depending on the number and qualifications of the staff, the secretariat of the court may perform a first preliminary examination in order to weed out manifestly inadmissible complaints as far as possible. However, as judicial power cannot be delegated to the secretariat, its opinion can only be advisory.”16

Making constitutional complaints effective
Once it has been accepted and introduced into the legal system of a state, the constitutional complaint must be an effective remedy in order to benefit complainants and domestic courts, as well as the Strasbourg Court. It seems that the best model is the one in which a constitutional complaint is an accessible filter to its full extent and without major restrictions for the protection of human rights and freedoms
15 16

CDL-AD(2008)030 Opinion on the Draft Law on the Constitutional Court of Montenegro. CDL-STD(1995)015 The Protection of fundamental rights by the Constitutional Court, Science and Technique of Democracy no. 15, 1995.

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At the same time, as with the case-law of the Strasbourg Court, the use of constitutional complaints has shown how important it is to work on informing the public about the existence of constitutional complaints as a legal remedy. To that end, brochures and information on the web sites of the constitutional courts may perform an informative as well as an educational function. The work of the court may be greatly expedited and simplified by introducing instructions on the web site of the Constitutional Court as to what a constitutional complaint should look like. This practice has also been introduced by the European Court of Human Rights. The Court has developed Instructions for applicants in all of the languages of Member States, explaining exactly how to fill in an application and what makes it admissible or inadmissible even before they decide to file a complaint.17 Equally important are the education of legal representatives (attorneys) and the regular provision of information on proper access to and proper use of this remedy. Legal representatives and interested citizens must have access to regular information on the case-law of the Constitutional Court and the European Court of Human Rights. One of the most important moves is to set up a case-law data base that will be available to both legal representatives and future complainants, as well as to judges in ordinary courts. The Strasbourg Court could not achieve much if it did not inform the public in the Member States of its recent decisions and changes in its case-law. The principle of transparency in the court’s work and the transparency of information about completed cases is an important prerequisite in a state governed by the rule of law.

17

http//: www.echr.coe.int.

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341.4(4):343.37

The Role of the State Commission for Prevention of Corruption in Implementing the Council of Europe’s Criminal Law Convention
Gjorgi SLAMKOV Introduction
Building of a democratic society implies existence of preconditions that enable free functioning of all institutions responsible for implementing the legal norms and standards. The acquisitions from this situation are positive for all citizens regardless of their position in society, provided that they accept and respect the designated norms. Each system functions according to the principles it is founded on, in this regard, the democratic principle is oriented toward fulfilling the interests of all citizens, surely depending by the potentials of the environment as well as their ways in approaching the individual. The creation and endurance of an efficient democratic system is conditioned by two assumptions - adopting legal and sub-legal acts, namely a legal framework, and the second one - more significant, creating and operationalisation of institutions for the legislative’s implementation. It is a matter of two different activities but with the identical goal, two tools of a process that do not go one without the other. Bearing in mind the fact that every society has some group of citizens that do not accept the designated rules and aim at fulfilling their objectives by evading or breaching the norms, a threat to the system’s functioning is created. This phenomenon is recognized as criminal conduct and is seen in different size and character. Namely, in the contemporary way of life, the organized crime, especially the transnational, presents the most detrimental form of criminal conduct. It is a matter of criminality that is characterized by few features: • Existence of a secret organized professional group that is methodically committing criminal acts,
Gjorgji Slamkov, PhD, Dean of the Faculty of Legal Studies, European University Skopje, Republic of Macedonia.

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• Hierarchic structure of the group, separating roles and an inner system of order and discipline, • Orientation towards criminal activities that generate the biggest profit in short period of time, • Insisting to approach the bearers of political power at any cost or installation of one’s own people in higher state structures, through which control and manipulation of funds from state funds is ensured, • There are no barriers, i.e. ethnic, religious etc, in service of realizing greater profits. One should mention the fact that the organized crime aims at reaching the designated goals at any cost. Two means are used for this - corruption and violence. It is a matter of instruments that have different contact with the environment. While the violence is notable and opens room for social reaction immediately after its appearance, the situation with corruption is much more complicated. Corruption is a phenomenon that is entered into the system and eats it in from the inside till the moment the system does not function any longer. This destruction is all the harder if the institutions are still not well-established, if they are still in some sort of a reform phase without any preventive mechanisms (transition countries). Corruption is present in all countries as a phenomenon in spite of the country’s level of organization and functionality. However, the organization and functionality still has an impact over the corruption’s representation and extent. The common problem imposed the need of coordinated action for combat against corruption by finding numerous instruments of national and international character. The Council of Europe is shown off in Europe especially by adopting the Criminal Law and Civil Convention on Corruption.

Criminal law convention on corruption
The Criminal Law Convention on Corruption (hereinafter referred to as Convention) is an instrument of the Council of Europe, adopted on 27.01.1999, and enforced on 01.07.20021. Its basic goal is coordinated criminalization of a large number of corrupt practices. In addition, it provides for complementary criminal law measures and for improved international co-operation in the prosecution of corruption offences. It is a matter of widely set dispositions which try to cover a broader spectrum of corruptive conducts, of course in correlation to the existing legal systems.
1

The Republic of Macedonia ratified it on 28.07.1999 while it was enforced on 01.07.2002

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The Convention puts the following forms of corrupt conduct into focus: • Active and passive bribery of domestic and foreign public officials, • Active and passive bribery of national and foreign parliamentarians and of members of international parliamentary assemblies, • Active and passive bribery in the private sector, • Active and passive bribery of international civil servants, • Active and passive bribery of domestic, foreign and international judges and officials of international courts, • Active and passive trading in influence, • Money-laundering of proceeds from corruption offences, • Accounting offences connected with corruption offences. States are required to provide for effective and dissuasive sanctions and measures, including deprivation of liberty that can lead to extradition. Legal entities will also be liable for offences committed and will be subject to effective sanctions, including monetary sanctions. The Convention also incorporates provisions concerning aiding and abetting, criteria for determining the jurisdiction of states, liability of legal persons, gathering of evidence and confiscation of proceeds gained from corrupt criminal offences, as well as the setting up of specialized anti-corruption bodies. Great attention is dedicated to the international cooperation in the combat against corruption through various forms of mutual assistance, including extradition, provision of information, direct communication. GRECO (Group of States against Corruption) supervises the Convention’s implementation. In this way, the international dimension is more expressed since the international cooperation is on one side while the supervision over the implementation of norms incorporated in the Convention is on the other side. In 2003, the convention was complemented which expanded its field of employment over persons that intercede in trading, civil and similar cases, as well as over jurors. This decision obliges the states to introduce new criminal act – active and passive bribery of domestic and foreign arbitrators and jurors. This amendment entered into force on 01.02.2005.

State Commission for Prevention of Corruption
The Convention’s ratification dragged whole series of activities in the legislation of the Republic of Macedonia. Namely, due the fulfilment of the obligations
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from the convention, a special act for combat against corruption was first adopted – Law on Prevention of Corruption.2 The basic idea of the law is laying down measures and activities for prevention of corruption in the exercise of power, carrying out of entrusted public mandates, official duty and politics, preventing conflict of interests, prevention of corruption while exercising tasks of public interest to the legal entities related to the realization of government, as well as prevention of corruption in companies. Nevertheless, the largest value of the law is considered to be the establishment of the State Commission for Prevention of Corruption. This body is established with Article 20 of the Convention which requires special and independent cadres for combat against corruption to be formed. From a chronological point of view, the idea for specialization of cadres derives from the recommendations and conclusion of the first Conference on specialization of cadres for implementation of the power in combat against corruption, held in Strasbourg in 1996. In accordance with the conclusions, it has been established that each state must have experts specialized in combat against corruption. The number of such experts should be satisfying and they should be presented with proper material resources. The authorizations of specialized units or individuals must be relatively vast and to include the right of access to all information and files that can bear great importance to the combat against corruption. Our law for prevention of corruption incorporates numerous international standards on the position and work of the State Commission for Prevention of Corruption. In accordance with the Law, the State Commission is autonomous and independent in carrying out its legal competences and functions as a legal entity. This implies establishment of a Secretariat as a professional service and independent budget, with a special section in the Budget of the Republic of Macedonia. Although the State Commission is formally formed by the Parliament with the appointment of members, it is neither a parliamentary body nor does it present an organ of the Government. The State Commission informs the Parliament of the Republic of Macedonia on the work of members in the State Commission. Members of the State Commission, with public announcement, are appointed by eminent experts in the field of law and economics. Its structure has term of office of 5 years without right of re-appointment while the President’s mandate, which is elected by the line-up of the Commission’s elected members, is one year. Members of the State Commission have a status of appointed persons, who carry out their function in parallel with their regular work duties at working places
2

“Official Gazette of the Republic of Macedonia” nr. 28/02, 46/04, 126/06, decision of the Constitutional Court from 10.01.2007, 10/08 and 161/08

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where they were employed prior to the appointment. Namely, they do not have professional status of employed in the State Commission. The State Commission consists of seven members and it works at sessions that are held at least once a week. The president, elected with majority of votes from the total number of members, represents the Commission, presides over the session, provides legal operation of the Commission and implements the Rules of Procedures. Members of the Commission participate in the work and decision-making for matters that are on the agenda of the Commission’s session and they act upon its conclusions, give initiatives, proposals and opinions. In case of conflict of interests, the member of the State Commission is obligated to inform the Commission on matters of elections and appointments by the Parliament of the Republic of Macedonia. The State Commission has many competences. The most important are: • Adopting a state program for prevention and repression of corruption and an action plan for its realization; • Initiates proceedings before competent organs for control of financialmaterial operation of political parties, trade unions and citizens’ associations and foundations; • Initiates proceedings before competent authorities for dismissal, criminal charges, or implementation of other measures for the responsible elected or appointed functionaries, officials or relevant persons in public enterprises and other legal entities funded by state capital; • Initiates proceedings for criminal pursuit of elected or appointed functionaries, officials or relevant persons in public enterprises, public institutions and other legal entities funded by state capital; • Takes action in cases of conflict of public and personal interest, determined by law; • Registers assets and property of elected and appointed functionaries, officials and responsible persons in public enterprises and other legal entities funded by state capital; • Submits an annual report on its work, undertaken measures and activities to Parliament, President of the Republic, the Government and the services for public information; • Cooperates with corresponding national bodies of other states, as well as with international organizations in the fields of prevention of corruption; • Educates bodies competent for detecting and prosecuting corruption and other types of crime;
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– Gjorgi SLAMKOV –

As previously mentioned, the State Commission has especially emphasized its principles for transparency in its work, namely it informs the public on the undertaken measures and activities and on their results through regular annual reports or when it assesses that it is vital to inform the public, depending on the character of matters which the Commission decides on.

Analysis on the results from the work of the State Commission for Prevention of Corruption
The State Commission is a specific body that has the abiding obligation to oppose and alarm about serious corrupt practices. This commitment leads the Commission to conflict with various structures, sometimes present in higher state bodies, which questions the capability of its functioning in conditions of increased pressure. The various influences can be especially expressed in the segment of assessment of results of its operation, when it is particularly important how the results will be presented in the public, what effect they are to have, and at times what personal solutions they are to refer to. There are various methods on assessing the work of the State Commission, through the specialized public, media, political parties, international bodies. However, the most appropriate measurable instrument is the annual reports, elaborated by the Commission. It is a matter of annual reports from the period of 2003-20093 which reflect the Commission’s set up, work problems as well as achievements followed by more important cases that stirred up the interest of the Commission and public are defined. The annual report help in determining the contribution of the Commission in implementing the norms encompassed in the Council of Europe’s Criminal Law Convention on Corruption. In addition, on the basis of the written documents, one can observe the imperative postulations for improvement of its operation in the future. In that way, first is the Commission’s report for 2003 in which it is established that 603 complaints have been submitted to the Commission (mostly on the privatization, judiciary’s operation, bankruptcy procedures), whereas in 15 cases the Commission had instigated procedures at its own initiative. The Commission has instigated an initiative for court prosecution to the Public Attorney for annulment of the privatization of holding company “Fersped” Skopje carried out in 1995. Besides this, the Commission instigated an initiative to the Public Prosecution for criminal proceedings against responsible persons connected to the privatization of “Porcelanka” Veles.
3

www.dksk.org.mk

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One should emphasize the work of the Commission at its own initiative. The following cases are considered to be most noteworthy: the privatization of “Okta” and “Macedonian telecommunications”. From the report, one can conclude that in the first year of its existence, the Commission demonstrated significant results in its operation because its constitution and staffing is carried out at the same period. During the reporting of 2004, 627 complains in total were submitted to the Commission by citizens while it formed on its own initiative 23 cases. One of the more important cases from this period is the case with the National payment card, for which the Commission instigated an initiative to the Public Prosecutor of the Republic Macedonia for criminal prosecution against the responsible persons. The initiative for instigating criminal prosecution against the responsible persons from the Agency for Development and Investments should be mentioned, due to founded suspicions for illegal spending of the funds from the loan granted in 1999 from the International Trade Bank of Republic China-Taiwan, in an amount of 20 million US dollars. The series of cases dating from this period includes the case with the allocation of CEMT permits to transport organizations, as well as the construction of the Memorial Centre ASNOM in Pelince, for whoch the procedure is not considered to be transparent and that room has been left for corrupt practices. In the following year of 2005, citizens have sent 563 complaints to the Commission, which presents a reduction of 10 percent compared to the previous year. The Commission formed initiative on its own for 18 cases. The more important cases from this period include cases “Spanish village” with unlawfully built buildings in park-forest “Vodno”, followed by case “Kermes”, the bankruptcy procedure in “Almako Bank AD” Skopje. 2006 is characterized with large scale of work when 679 complaints from citizens where submitted to the Commission while it formed initiative on its own for 29 cases. One of the cases that marked 2006 is case “Bacilo” for which the court established that the state, without legal basis, through corrupt network, paid out millionaire’s amount for fictitious damages. This case openly showed the complexity of the network of different structures that unite when performing criminal acts, especially the involvement of structures that perform public functions. The report for 2007 is characterized with a new personal set up of the Commission, as well as with special attention on the implementation of the newlyadopted Law on Prevention of Conflict of Interests. This period observes great boost of the complains submitted by citizens - 1114, which demonstrated that citizens show increased sensibility for the problem of corruption and not settling
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– Gjorgi SLAMKOV –

with the danger and damage it causes to the vital values of society, demonstrating accentuated mobility and motivation to deal with it. In 2007, the Commission had instigated 8 initiatives on its own. During this period, the Commission invested great efforts to prevent conflict of interests which is seen by the great number of instigated initiatives for dismissal of bearers of public functions. During 2008 the Commission received 767 complaints from citizens. 100 cases are added in connection to the early parliamentary elections, with which the work of this body is in full capacity. The Commission instigated 27 initiatives for establishing responsibility. The report contains initiatives for responsibility of few mayors, as well as against numerous people from the state administration organs. One should mention the case against responsible persons in public enterprise “Makedonska Posta” in connection to the numerous robberies of vehicles for money transportation, as well as the damage from its, whereupon the Commission emphasizes that the non-undertaking of appropriate measures for security is the reason for the frequent robberies. In 2009, there is a significant drop of complaints from citizens to the Commission and the number totals 471 while the initiatives from the Commission total 11. Some of the more important cases from this period are: public health organization “Gradska Apteka” Skopje, case on holding company “Inteks” Skopje, public enterprise, water utility - “Vodovod i kanalizacija” Skopje, as well as other cases on responsible persons from several local self-governments. The Commission instigated a procedure for inspection of statement of assets for several persons (including mayor of municipality of Centar). * * *

On the basis of the above mentioned, one can conclude that the Commission, through the results of its work, is turned into a serious entity in the combat against corruption, both preventively and repressively. Surely, there is always room for better results. However, the great number of complaints, and the opening of many cases (involving great financial funds, as well as against entities that have influence in the system) indicate that it fulfills the objective for its existence and has the trust of citizens. It brought new energy, visible both at home and internationally. It contributes to strengthening the awareness of citizens on the detrimental repercussions from corruption, the magic circle of dependency and bleakness and the need to search out quality mechanisms for responsibility. On a global scale, it assists in
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improving the position of the Republic of Macedonia on the list of Transparency International for the results in the combat against corruption. With its engagement, the Commission, to a great extent, succeeds to embody the norms of the European Council’s Criminal law Convention on Corruption, naturally to the expected scale. Several questions connected to the future status of the Commission are imposed. Namely, the work results will considerably depend by the budget that will be at its disposal. In this way, two years ago, there was reduction of the funds allocated to the commission (with the rebalance of the budget in 2009, some 20 percent of the allocated funds were cut) with the world economic crisis as an official explanation. The finances are a foundation for the operation of every structure and in conditions of crisis they are hard to access but a body such as the Commission, which in a short period of time succeeded to impose itself as the mover in the combat against corruption, should get greater support in order to preserve the work continuity. The following question is of different character, namely, an attempt for professionalization of the Commission has been made in the past, aiming its members to fully dedicate themselves to the work, without any obligations to another work post. This idea did not pass (in 2004-2005) but the possibility for its repeated review should not be excluded as the professionalization presents complete concentrating of the energy into one place, with absolute independence and work continuity. In such case, the extension of mandate of the Commission’s members (which at the moment is 5 years) is imposed as a logical solution because its operation is very delicate and greater security and continuity is needed in order for the members to perform their activities thoroughly and with quality. In our conditions, the Commission’s idea on creating specialized bodies for combat against corruption has the aim to complete the institutional framework with an active structure that will maintain intensive contacts with institutions and the civil sector as well. The Commission needs to work closely with the public prosecution because the most initiatives for prosecution are submitted to this organ. It is known that a great gap between the Commission and the Public Prosecutor of the Republic of Macedonia was created in 2005 and simultaneously all international organizations connected to the combat against corruption condemned it as a weak point of the system. The Commission’s members are appointed by the Parliament of the Republic of Macedonia on the basis of a publically conducted procedure with respect of the strict legal rules. It is a collegiate body but the individual contribution is still the most important for work success. Therefore the Commission should be
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– Gjorgi SLAMKOV –

composed by individuals that are professionals in their field, prepared to face challenges, resistant to influences and determined to contribute in fulfilling the higher objective – prevention of corruption and prosecution of performers of criminal acts and offences. For almost five years, our Commission faced problems with facility accommodation. This problem was issued in every annual report and the competent left it unsolved. The Commission acquired its facility in 2007 on surface of more than 650 square meters in order to function normally. The Secretariat’s staff remains a problem. Namely, since it was established, employment applications are constantly submitted as well as demands for completing this body which performs technical and administrative work in the Commission. The preparation of sessions, communication with other organs and additional required activities are carried out through the Secretariat and this is why its nonvacancy has effect on the Commission’s operation.

Conclusion
Corruption is a phenomenon present in all countries around the world regardless of the level of their social and political progress. It is almost impossible to determine its real outspread in the world since reliable data for this do not exit, meaning that it is a matter of criminality with high dark numbers. The problems surroundings its detection and assertion originate due to the fact that most often performers of corrupt practices are persons holding high work positions, chiefly employed in state organs, public services and other public institutions and establishments that decide on certain rights and obligations of citizens and legal entities. The adoption of the Council of Europe’s Criminal Law Convention on Corruption is the international community’s recognition of the problem’s complexity and the need of a coordinated and thorough action for its repression. The Convention urges countries to undertake actions, including the formation of specialized bodies for fight against corruption. The Convention was ratified in the Republic of Macedonia and served as a foundation for numerous legal decisions, including the Law on Prevention of Corruption and the Law on Prevention of Conflict of Interests. In the firstly mentioned legal act we come across the foundation for the establishment of the State Commission for Prevention of Corruption, an organ that has achieved significant results over the recent years in the combat against this detrimental phenomenon. In the future, one needs to continue moving in the already marked path and eliminate the flaws which appeared in the past.

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Key words:

Corruption, Criminal Law Convention on Corruption, Council of Europe, State Commission for Prevention of Corruption,

References:
Council of Europe’s Criminal Law Convention on Corruption, Law on Prevention of Corruption, “Official Gazette of the Republic of Macedonia” nr.28/02, 46/04, 126/06 decision of the Constitutional Court from 10.01.2007, 10/08 and 161/08, Law on Prevention of Conflict of interests, “Official Gazette of the Republic of Macedonia” nr. 70/07, Annual reports of the State Commission for Prevention of Corruption 2003-2009, http://www.dksk.org.mk

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341.231.14(093.2):341.654

Implications of EU’s Accession to the European Convention on Human Rights
Jana LOZANOSKA
The paper will examine the solutions included in the EU Lisbon Treaty adopted recently which pertain to the human rights protection1. Notably, the accession of EU as such to the European Convention of Human Rights is a matter of reality now. However, political and legal implications should be expected despite the existing optimism for establishing coherence between both systems. On one side, having the European Convention on Human Rights and Freedoms2 and the European Court of Human Rights as mechanism for judicial control on respect of the Convention, and on the other hand the Charter of Fundamental Rights of the European Union from 20003 with the European Court of Justice. Thus, the analysis will attempt to answer the question whether the similarity and/or divergence of EU and the broader European system will strengthen the protection of human rights or will create additional confusion. Initially, one has to look at the specificity of both systems before launching to the core of the analysis related to the constitutional changes of Treaty of Lisbon which entered into force on December 1, 2009. The EU is a supranational organization established in 1952 as Steel and Coal Community. The main purpose then was the economic interest, the promotion of human rights was not a primary objective for the founders of European Communities. Throughout its evolution the fundamental rights rose as a requisite not only for Member States, but also for those biding to acquire full membership to the European Union4.
1

2

3

4

Consolidated version of the Treaty on European Union and Treaty on the Functioning of European Union (EU Lisbon Treaty), Official Journal of the European Union, 2008/C 115/01. Convention on Protection of Human Rights and Fundamental Freedoms Rome. 4.XI 1950, as amended by Protocols Nos.11 and 14, Registry of the European Court of Human Rights June 2010. Available at: www.coe.int. Charter of Fundamental Rights of the European Union, Official Journal of the European Communities, 2000/C 364/01. European Council in Copenhagen, Conclusions of the Presidency, 21-22 June, 1993. p.14. Jana Lozanoska LL.M, PhD Candidate and former Director of the Center for Democracy and Security in Euro-Balkan Institute. Currently works as an independent consultant.

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The European Union is comprised of institutions with capacity of lawmaking - directly applicable in the Member States, which means there is no necessity to adopt implementing legislation. The areas of legal regulation are wide and do not pertain only to human rights. Although human rights are generally matter of interest of the Union until the adoption of European Single Act of 19865 and subsequently with the Treaty on European Union 1992 no catalog of fundamental rights protection was provided by the EU/EC primary positive law. The case law of the European Court of Justice made a breakthrough for including direct provision recalling in its judgments the general principles of law and on the rule of law6. The article F (2) of the said Treaty reads: “The Union shall respect fundamental rights, as guaranteed by the European convention for the Protection of human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of community law”.7 The Council of Europe on the other hand is the oldest pan-European organization founded in 1949 and nowadays comprised of 47 Member States including EU Members States and non-EU Member States. Its primary objective since the establishment is to promote the respect for human rights, democracy and rule of law. The legal instrument which is most widely known is the European Convention of Human Rights and Fundamental Freedoms (ECHR) from 1950. The body responsible for implementation of the Convention is the European Court of Human Rights (ECtHR). The provision relevant for the discussion in this paper included in the EU Lisbon Treaty is Article 6. The paragraph 1 relates to the Charter of Fundamental Rights of the European Union (Charter) whereby making it legally binding in its totality for the first time since its proclamation in 2000 in Nice. Initially, is relevant to examine the substantive complementarity and/or divergence between both sets of documents (the Charter on one and the ECHR on the other hand) before launching to the procedural discussion. Since 1974 all Members States of EC/EU have also been members of the ECHR. As a consequence the ECHR and the case law of the ECtHR have been serving both to the development of the ECJ’s practice and for drawing up the

5

6

7

In its preamble stressed the determination of State Parties ‘ to work to promote democracy and fundamental rights... recognized in the European Convention of Human Rights’. V. Heydt, ‘EU Adhesion to European Convention of Human Rights without benefit for citizens’, June 2010. Available at: http://www.europolitics.info/eu-adhesion-to-european-convention on-humanrights-without-benefit-for-citizens-art278556-10.html. Treaty on European Union, Official Journal C191 July 1992. Available at: http://eur-lex.europa.eu/ en/treaties/dat/11992M/htm/11992M.html

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Charter on Fundamental Rights8. Similarly the historic evolve of EU/EC treaties confirm that ECHR has been taken as reference point in every document so far. This is due to the fact that Members States of EC/EU respectively as States Parties of ECHR have obligation to ‘secure to everyone within their jurisdiction the rights and freedoms...’.9. Such requirements contained in the ECHR and elaborated through the case law of the ECtHR simultaneously shaped the fundamental rights protection within EU/EC. In that sense Article 52 para 3 of the Charter provides: “In so far as this charter contains rights which correspond to rights guaranteed by the convention for the Protection of human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said convention. This provision shall not prevent Union law providing more extensive protection.” In short the said provision stresses that the both sets are substantively similar, but however broader protection might be provided with the Charter itself. That the Charter is more extensive can be also confirmed by employing the general rules of treaty interpretation10 and by consecutively comparing both regimes. First and foremost the difference between the Charter and ECHR is that the former among political and civil rights includes economic, social, cultural and citizenship rights as well. Further, it contains provision on non-discrimination which is stand-free as oppose to the ECHR which has to be related to the substantive right in order discrimination to be claimed. The Charter has one general limitation clause whereas the ECHR has separate restriction clauses. Apart from these minor differences of the substantive provisions, this parallel regimes situation triggers another question of application and functioning of the two systems in situation when EU accedes to the ECHR and in the same time when the Charter is legally binding document. Until the declaratory level this parallelism does not create problems but when brought to practical terms it could create difficulties if the details surrounding the accession and all related issues are not worked out properly. In terms of access to the ECJ the Charter does not directly provide a right of individual petition to the ECJ, similarly Lisbon Treaty has not changed this situation. The only recourse to Luxembourg open to litigants for a breach of a Charter right would be, therefore, through the preliminary reference procedure which
8

9 10

N. Bamforth, European Union Law, the European Convention, and Human Rights, Virginia Lawyer Vol. 58. International Practice Section, February 2010. Available at: http://www.vsb.org/docs/ valawyermagazine/vl0210_EU-law.pdf. Article 1 ECHR. Op.cit., note 2. Article 31,Vienna Convention on the Law of Treaties, Done at Vienna May 1969, Entered into force 27 January 1980, United Nations, Treaty Series vol.1155, p.331. Available at: http://untreaty.un.org/ ilc/texts/instruments/english/conventions/1_1_1969.pdf, See also: op.cit. note.1, Article 6(1) EU Lisbon Treaty.

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enables domestic courts to consult the ECJ for rulings on points of Community law. In that sense the citizens have limited locus standi when it comes to the ECJ. Whereas the ECHR provides for individuals to directly claim their rights in front of the ECtHR these are considered admissible if only certain criteria are satisfied including the exhaustion of all domestic remedies11. In that sense many jurisdictional questions are pertinent. First, which is the relationship between the ECtHR and ECJ? Should ECtHR be last instance resort for examining alleged human rights violations, and should review the ECJ judgments? Who decides on the issues related to EU law and the human rights protection? To answer these questions one has to turn to the core of the analysis which is linked to Article 6 (2) of the EU Lisbon Treaty. The said article entails EU as such with separate legal personality for accessing to the ECHR. In that sense the article reads: ‘The Union shall accede to the European convention for the Protection of human Rights and Fundamental Freedoms. Such accession shall not affect the Union’s competences as defined in the Treaties.’12. There are many arguments in favor of accession. The most frequently used is that the accession to the ECHR will complete the EU system for protection of human rights13. Even though the expectations are quite high this process is not devoid of complications and confusion if not clearly defined and elaborated. Formally the Protocol 14 to the ECHR allows EU to accede to the ECHR, but apart to this the accession negotiations are set out and rapporteurs are appointed to explore the possibilities of compromise on the divergences related to the accession14 This process should result in adoption of accession instrument which will both articulate EU specificity but also take into consideration the Council of Europe’s interests and reform process in general. Anyway various legal and political implications are to be anticipated. The former pertain to the more technical issues whereas the latter to the political results these changes will bring about both to the EU and Council of Europe as such. In terms of legal consequences EU will become Party to the ECHR and submit its sui generis character to the general functioning of CoE and particularly to the ECtHR, despite the fact that all Members States of EU are in
11 12 13

14

Op.cit. note 2. Article 35, ECHR. Op. cit. note 1. Article 6 (2) EU Lisbon Treaty. N. Siskova PhD, ‘Eventuality of Accession to European Convention of the Protection of Human Rights and Fundamenatal Freedoms and Related issues’, p.1. Available at: http://www.unc.edu/euce/ eusa2009/papers/siskova_12G.pdf Protocol No.14 to the convention for Protection of human Rights and Fundamental Freedoms, amending the controlling system of the Convention, Strasbourg, 13.V. 2004; Political Affairs Committee, The Impact of Lisbon Treaty on the council of Europe, Rapporteur: Mrs Kerstin LUNDGREN, Sweden, Alliance of Liberals and Democrats for Europe, Information note on the fact-finding visit to Brussels (9-10 June 2010).

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the same time State Parties to the ECHR. Such a situation might foster changes in two directions. On one hand for the overall system of CoE and particularly for ECtHR’s and its functioning but also for the EU institutions and especially the European Court of Justice. When examining CoE and its bodies the the question which needs to be posed is whether the EU’s accession will add up to the ongoing reform process. In addition this might create different political climate, despite the existing intentions to bring the broader Europe under same umbrella of the human rights protection. Moreover, the relevant question related to the legal consequences of the EU’s accession to the ECHR is the fact that regardless all EU Member States are represented at the ECtHR by its own judge, the EU separately will appoint a judge. The intention of the ECHR is clear and that is all European states systems to be represented in the body responsible for its implementation. This was intended for states as subjects to international law and not for supranational organizations such EU which represents the various constitutional systems of its Member States. However, Vice-President Reding in her speech to the Parliament reaffirmed the position of the Commission to appoint full time judge at the ECtHR15. On the other hand, one author points out that the accession to the ECHR and the appointment of a judge would be very costly step for the EU, which does not guarantee the strengthening of the human rights protection. Furthermore, issues that at the same time are of technical but also substantive nature is the European Commission’s stance articulated through Ms.Reding which suggests that the ECtHR should not in principle interpret the EU law. How this is possible when having EU accessed to the ECHR is unclear? The main role of ECtHR ‘extends to all matters concerning the interpretation and application of the Convention16, in other words includes revision of domestic legislation and acts the of Member States towards its citizens. Translated in terms of EU’s accession it involves revision of the EU legislation and acts of its institutions. Should ECtHR do a revision to human rights standards as defined by the ECHR after the European Court of Justice has adjudicated the matter? However, on the ECJ side, there is risk that this eventuality would not be appreciated because the ECJ’s exclusive jurisdiction on the interpretation and the application of Community law. Some authors even justifiably question whether such a revision would be reasonable17. Why? Generally both the findings of ECJ and ECtHR have been
15

16 17

Viviane Redding Vice-President of the European Commisiion for Justice, Fundamental Rights and Citizenship, ‘The EU’s Accession to the European convention of human Rights: Towards More Stonger and coherent Protection of human Rights in Europe’, Hearing of the European Parliament’s Constitutional Affairs Committee Brussels, 18 March 2010.p.5. Article 32 ECHR. Op cit. note 2. EU Adhesion... p.1. Op.cit. note. 6.

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following similar lines and have been complementing each other18 confirmed also by historic evolve of EC/EU treaties which have clear reference to ECHR, there might be overlaps. But what if there are discrepancies in the case law? Which judgment would precede for the EU as such and its Member States? One author believes that even after Lisbon the case law between both courts will be harmonized, but it does not point out how this will be achieved on practical level, thus still this remains to be seen19. Furthermore, what if violation of the ECHR is identified, should EU as such be held accountable or the respective Member State? The practice of the ECtHR suggests that even an alleged violation was a result of an EU legislation could not excuse the Member States from responsibility: they could not, by transferring powers to an international or supranational institution, evade their own responsibility under the ECHR20. However, this is the situation when the organization is not Contracting Party, and thus cannot be found in violation of the provisions deriving out of particular treaty. But what happens in the case of EU and the accession to ECHR? In that direction one should ask whether the ECtHR will retain or abandon above-mentioned position. If opts for the already established practice than EU’s accession to ECtHR is obsolete, and there is no reason as already pointed out stance to appoint a judge and make whole exercise of accession negotiation. If the intention is to held EU and its institutions responsible for the breaches of the ECHR than there is validity of the legally envisaged accession whereas having ECtHR as final adjudicator regarding the protection of human rights in broader Europe. In same time one should have in mind the fact that ECJ has supremacy of interpretation of the EU law, actually this is what Reding suggests when pointing out that the ECtHR should not in principle interpret the EU law. However, it would be rather hard for the ECtHR to take up such a rigid stance not to interpret the EU law and lawfulness of the act or omissions of its bodies when revising alleged breaches of the ECHR. Should then both courts as a matter of principle concur with each other? Is this in line with proper and full protection of human rights, both courts making the similar findings or is ‘politically’ justifiable solution? Then what is the reason behind the accession? The very idea
18

19

20

F. G. Jacobs, ‘The European convention on human Rights, the EU charter of Fundamental Rights and the European cort of Justice: The impact of European Union Accession to the European convention on human Rights, pp.291-296. Available at: http://www.ecln.net/elements/conferences/book_berlin/ jacobs.pdf. L.Wilderhaber, ‘European Union, European convention on human Rights, and human Rights Protection in Europe’, International Symposium on EU-Integration and Guarantee of Human Rights, Session I at at Ritsumeikan University, Ritsumeikan Law Review No. 26, 2009 pp.156-161. Waite and Kennedy v. Germany (GC), Appl. No. 26083/94, ECtHR decision of 18 February 1999, para 67. See also Matthews v. United Kingdom, ECtHR(GC) decision of 18 February 1999, para 32. ‘Member States responsibility therefore continues even after such a transfer”.

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of accession to the ECHR implies that EU acts would become subject to review by the ECtHR for their compliance with the ECHR after the local remedies have been exhausted. The fact that EU was not a party to the ECHR meant that it was not legally bound by it, and that it could not participate in the proceedings before the ECtHR against its Member States, even those involving its own legal acts. At this point the doctrine on equvalent protecion arises which either will gain more significance or it will be abandoned completely with the EU accession to the ECHR21. In short the doctrine was developed by the ECtHR which found the claims against EU Members States involving EC inadmissible. This approach rose out of presumption that EU legal order provides protection which is equivalent to that of the ECHR, and the action taken in compliance with such legal obligations would be justified as long as the organization is considered to protect fundamental rights in a manner which can be considered at least equivalent to that for which the ECHR provides22. In fact this doctrine confirms that parallel rights protection system co-exists along with the ECHR, which allows to EU/EC and Members States certain margin of appreciation in adopting legislation and policy measures as long this is in compliance with ECHR standards. The most relevant question then is should this margin of appreciation be reviewed and more importantly quashed by the ECtHR if found to be breaching the ECHR, and after ECJ had adjudicated the matter? In that case which is the last instance adjudicator? If it tangles the protection of human rights and respect of the ECHR and if all procedural requirements are satisfied then there is no reason why ECtHR should not conduct legal assessment. How then it can be expected for ECtHR not to interpret EU’s law is not quite clear. The Bosphorus case has received a wide interest and was subject to much criticism. One author was blunt in its statement that ECtHR “missed the opportunity to establish a clear, coherent and uncompromising approach to the protection of human rights within the Community legal order”23. Other comments have been more reserved saying that case is “an illustration of the singular nature of a multidimensional European legal space, which is pluralistic and hybrid in nature, in which there exists no straightforward hierarchical relationship in human rights cases”24. Whereas some have found the doctrine as potentially providing a deep
21

22 23

24

L. Šaltinyt, ‘European Union Accession to the European convention of human Rights: Stronger Protection of Fundamental Rights in Europe?’ Jurisprudence, 2010 2(120) pp.177-196. Available at: http://www. mruni.eu/lt/mokslo_darbai/jurisprudencija/paskutinis.../dwn.php?id... Bosphorus hava Yollari Turizm v. Ireland, App. No. 45036/98, ECHR, 30 June 2005. S. Peers, ‘ Limited responsibility of European Union member states for actions within the scope of community law’. Judgment of 30 June 2005, Bosphorus Airways v. Ireland, Application No. 45036/98. European constitutional Law Review. 2006, 2: 44355. S. Douglas-Scott, Case comment on Bosphorus hava Yollari Turizm Ve Ticaret Anonim Sirketi v. Ireland, application No. 45036/98, judgment of the European court of human Rights (Grand chamber) of 30 June2005, (2006) 42 E.H.R.R. 1. common Market Law Review. 2006, 43: 243?254.

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and specific insight into the level of fundamental rights protection afforded by the EU and the ECJ in individual cases, whilst still retaining the autonomy of the EU legal order25. In addition, there two paradoxical effects out of the doctrine of equivalent protection taken together with solutions included in the Lisbon Treaty. This doctrine on one hand gains more weight by giving to the Charter on Fundamental Rights binding legal effect and thus far closing the EU gap of fundamental rights protection, whereby EU’s accession to ECHR intends to strengthen Council’s of Europe human rights protection system. It seems that EU’s role in whole accession assignment is two fold. To influence its own system, but also to add up to the broader system of human rights protection. But is the accession only led by inspiration for protection of human rights or for achieving greater control over the broader system of protection? What should not be forgotten is that EU as Party to ECHR will also be represented at the Committee of Ministers, body that supervises implementation of the judgments brought by the ECtHR. In simple words if the ultimate motivation is ensuring greater protection of human rights then the accession is justifiable, but if guided by the incentive of supremacy of EU legal order as oppose to the ‘others’ the reason behind the accession exercise should well be questioned and in same time criticized.

Conclusion
The analysis has established that it is mandatory the EU’s accession to the ECHR to be done by way of precisely clarifying the roles, competences and jurisdictions and particularly the relationship between ECtHR and ECJ, since in the same time there is substantive similarity between the Charter and the ECHR. In any case many procedural questions arise which is not obvious how it will be tackled. Therefore, EU individually should contribute toward clarification of the matters which are uncertain but also the negotiation should answer and elaborate these questions for simple purpose of strengthening the protection of human rights on European level. It is evident that EU as such would like to have an upper hand even broadly through the Council’s of Europe protection system but should in the same time be aware of the responsibility behind such aspiration. Thus, its motivation and intention should be as clear as possible in order not to produce space for political leverage and its institutional and Members States interest to out weight the protection of human rights.
25

C. Costello, ‘The Bosphorus Ruling of the European court of human Rights: Fundamental Rights and Blurred Boundaries in Europe’. Human Rights Law Review. 2006, 6(1): 87/130, p. 94.

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Macedonia – Promoter of the European Values and Principles

Macedonian chairmanship of the committee of Ministers of the council of Europe Realized Activities
The Republic of Macedonia’s Chairmanship of the Committee of Ministers of the Council of Europe focuses on three main political priorities: 1) strengthening human rights protection, 2) fostering integration while respecting diversity and 3) promoting youth participation. In the framework of these three thematic areas, a calendar of events that will be organized during the country’s chairmanship was presented, which will promote the three thematic areas that present part of the most topical matters that the member-states of the Council of Europe are facing but the organization as well. The conception of the priorities and events that the Republic of Macedonia has presented and organized as the holder is carried out to provide the country a role of an active promoter of the principles and values of the Council of Europe and of a member-state that contributes to the organization’s reform process, which focuses on the most sensitive issues from national, regional and European character. All 15 envisaged international events from the Calendar of major events are successfully realized in the course of the chairmanship in the fields that refer to: the collaboration with the Parliamentary Assembly of the Council of Europe, in the field of judiciary, strengthening of the principle of subsidiarity which is vital for the long-term efficient functioning of the control mechanism of the European Convention on Human Rights and the reform of the European Court of Human Rights; fight against corruption; protection of national minorities, including the topical problems of the Roma population; integrating persons
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Photo: Sandro Weltin © Council of Europe

with disabilities; in the sphere of social cohesion; culture and strengthening of the intercultural and interreligious dialogue and promotion of the youth participation in the political and democratic processes. All events were widely attended with the participation of representatives of many Council of Europe member-states, which enabled our institutions to intensify existing contacts and collaboration with the partner institutions from other Council of Europe member-states, as well as creating new contacts and possibilities for exchange of experiences and knowledge. Many events referred to all member-states of the Council of Europe but four events were of regional character aiming to contribute to the further democratic development of our narrower or wider region based on the European values and principles. The realized events are confirmation that the Republic of Macedonia is actively contributing in harmonizing the European policies in all abovementioned spheres, promoting the standards of the Council of Europe in human rights protection, the rule of law and the democratic functioning of the institutions and assisting in the further development of standards through concrete results from these events. The subjects of discussion at the events were carefully selected to relate to the current events in Europe and the topical response that the Council of Europe is offering in solving these issues, by complementing the previous discussions which were held in the framework of the organization and upgrading its existing documents.
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In relation to the activities connected to strengthening human rights protection, we emphasize the importance of the international conference dedicated to the principle of subsidiarity. Namely, on 1 and 2 October in Skopje, in organization of the Ministry of Justice of the Republic of Macedonia, supported by the Ministry of Foreign Affairs, the Conference on the principle of subsidiarity was held, focused on one of the most topical issues within the Council of Europe – the Interlaken process and the reform of the European Court of Human Rights. More than 100 participants (many Government agents that represent the states before the Strasbourg Court and representatives of the highest courts of the Council of Europe’s member-states) took part at the conference, as well as experts from the Venice Commission, judges from the Strasbourg Court, representatives from the Parliamentary Assembly of the Council of Europe and experts from the nongovernmental sector. This Conference contributed greatly in providing continuity in the Interlaken process which refers to efficient and long-term functioning of the control system of the European Convention on Human Rights. The conclusions from this conference will be presented at next High Level Conference dedicated to the Future of the Court, which is to be held in April 2011 in Izmir during the Turkish Chairmanship of the Committee of Ministers of the Council of Europe. The Conference in Skopje reaffirmed the need to put greater efforts at national level for guaranteeing and protecting human rights and implementing the standards from the jurisprudence of the
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Strasbourg Court that are the basis of the legal principle of subsidiarity. The Conference also presented an opportunity for analyzing the role of all actors that have their place in the subsidiarity and influence it. On 15 and 16 October in Ohrid, in organization of the Ministry of Defense, the Conference “Integrative feedback of domestic and international activities” dedicated to fight against corruption was held. Some hundred participants examined the topical issues in the fight against corruption: confiscation and restitution of property, transparency and integrity of public administration and the financing of political parties. Participants included high representatives from the Group of States against Corruption (GRECO), the European Partners against Corruption (EPAC), the United Nations Office on Drugs and Crime (UNODC) and the Camden Assets Recovery Inter-Agency Network (CARIN). In the course of the Conference, a Joint Statement from six countries of South East Europe (the Republic of Macedonia, Albania, Bosnia and Herzegovina, Serbia and Montenegro) was signed, aiming at reinforcing regional co-operation in the fight against corruption. With this Statement, the countries agreed to continuously undertake measures at regional level for: implementation of the broadest mutual legal assistance in the field of fight against corruption, encouraging extradition with efficient transfer of standards of the Council of Europe into this field, coordinated activities and direct cooperation between the public prosecutors, judges and police, by forming mutual proactive teams
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Macedonia – Promoter of the European Values and Principles

aiming to perform joint investigations on revealing cases of organized crime and corruption. Several events from the field of social cohesion were organized in the Republic of Macedonia, in organization with the Ministry of Labour and Social Policy, connected to the integration of persons with disabilities (7-8 October, Skopje), Conference on launching the Action Plan for Social Cohesion (28-29 October, Skopje) and the Seminar on Gender Budgeting, 4-5 November in Bitola. In the frames of the second priority “fostering integration while respecting diversity”, several important international events took place in the country, including the conference on integration of national minorities in decision-making processes (7-8 June, Skopje) aiming to strengthen the cohesion of European societies, and regional conference dedicated to the access of Roma to personal identification documents and voluntary repatriation of the RAE community (Roma, Ashkali, Egyptian) to Kosovo (14-15 June, Skopje). At these conferences, the political will of participant-countries for overcoming certain problems in these spheres was reaffirmed and contribution was made to solve these important and complex issues. The topic of the first conference, dedicated to the issue of effective participation of the minorities in the decision-making processes is particularly topical in the frames of the Council of Europe. The Conference resulted with some concrete conclusions, such as: it is good that the issue on integration of national minorities
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was reviewed in context of the social cohesion and Article 15 from the Framework Convention for the Protection of National Minorities (FCNM), the significance of the monitoring performed by the body for supervising the implementation of FCNM- Advisory Committee on the FCNM and the fact that information is collected for effective participation of minorities in the political and public life of countries from all levels-central and local; there is no universal approach and unique solution to all issues but specific solutions for specific situations must be searched for; the minorities are plural and can cover several identities, that must always be taken into consideration when the issues for their integration are reviewed; it was emphasized that the ratification of FCNM of the memberstates is insufficient and that concrete steps for providing effective participation of minorities should be undertaken. The second Conference dedicated to the problems that the Roma are mainly faced with, enabled the representatives of the countries from our region, where the problem is more present, to exchange thoughts and experiences on the measures and activities that are undertaken for its solution. This problem raised great attentions because it is a prerequisite to enjoy other guaranteed human rights of the Roma that are mostly struck by this issue. Government representatives from the countries of South East Europe, several representatives from the Council of Europe, other international organizations and nongovernmental organizations attended the conference. Many concrete conclusions came out from this Conference
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Macedonia – Promoter of the European Values and Principles

as well, that will serve as a basis for further discussion in the authorized bodies of the Council of Europe. Furthermore, the conclusions refer to the need of the states to undertake urgent measures to solve this issue; to properly analyze the situation in each country in order to identify the weaknesses and opportunities for their solution; call to ratify the Convention for prevention of statelessness by all South East European countries; to carry out appropriate changes and reforms to the legislatives and the administrative practice (reforms of the registry offices); raising public awareness for this problem; reinforcing the mutual co-operation and support by the Council of Europe. Our focus on this problem within the chairmanship, by organizing this conference, gained greater significance in light of the latest events with the Roma in some European countries, which was the motive for organizing the High Level Meeting on Roma of the Council of Europe in Strasbourg on 20 October 2010, at the initiative of Secretary General Thorbjørn Jagland. The Macedonian Minister of Foreign Affairs, Mr. Antonio Miloshoski, presided over the meeting, as the chairman of the Committee of Ministers. This meeting aimed at strengthening of the pan-European cooperation on protection of Roma rights and offering concrete activities that will enable the Roma a better access to education, social and health protection, employment and housing. The “Strasbourg declaration” was adopted at this meeting, which contains guiding principles and priorities that the member-states should address in relation to the Roma and they refer
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to several spheres, such as non-discrimination, social inclusion, citizenship and better access to justice. The Declaration envisages creation of new European programmes for training of Roma mediators and lawyers that will work with the Roma to assist them in accessing the education, health care, employment and housing and will assist in creating new ties between the Roma community and the nongovernmental sector. Minister without Portfolio in the Government of the Republic of Macedonia, Mr. Nezdet Mustafa addressed this conference, stressing the good practice of the Republic of Macedonia in including the Roma when solving their problems and through participation in the country’s political and public life. Macedonia was the only member-state of the Council of Europe presented through a Roma Minister at this Conference. At this year’s Exchange of the Religious Dimension of the Multicultural Dialogue, dedicated to the role of media, the freedom of expression and the promotion of tolerance , held in Ohrid on 13 and 14 October, eminent experts from the member-states of the Council of Europe discussed on these very important and at the same time sensitive issues in Europe. In addition, the participants agreed that the Council of Europe standards and the practice of the European Court of Human Rights give solid foundation for a more professional informing on multi-confessional subjects and more responsible attitude, not only of the media but also of our societies as a whole (religious leaders, nongovernmental sector etc.) towards the multiculturalism and multi-religiousness in Europe. For the promotion of the activities connected to the second priority of our chairmanship – “fostering integration while respecting diversity”, Foreign Minister Antonio Miloshoski, as the chairman of the Committee of Ministers, addressed two significant meetings of the United Nations Alliance of Civilizations, which also promoted its principle and need of fostering the multicultural and multireligious dialogue. At these events, Foreign Minister Miloshoski indicated the need for raising the synergy and co-operation between the Council of Europe and the Alliance of Civilizations, and simultaneously promoted the activities of the Republic of Macedonia as the Chairmanship holder of the Committee of Ministers, which are compatible with the Alliance’s objectives and our national activities within the Alliance. At the Ministerial Conference “Promoting the social values of cultural heritage in Europe”, in organization of the Macedonian Ministry of Culture, “Skopje’s Agenda” was promoted, which encompasses activities that should assist the monitoring of the regional projects of the Council of Europe that are implemented in the sphere of cultural heritage. Thus, the provisions from the Faro Convention will be materialized, which deals with the issue of cultural heritage in a broad and more general concept
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– in context to the economic progress, local tourism, strengthening the social cohesion, from a point of efficient physical planning. All these aspects are part of the integrative approach in dealing with cultural heritage, which approach is also promoted by the Macedonian chairmanship. At the Conference, Macedonian Culture Minister Elizabeta KanceskaMilevska signed the Faro Convention, thereby opening the opportunity for entering into force of this legal instrument of the Council of Europe. The third concrete result from this conference was the establishment of the Council of Ministers of Culture for the countries from the Black Sea region and South Caucasus, following the example of the already existing and functional Council of Ministers of Culture of South East Europe (SEE). One of the main priorities of Macedonia’s Chairmanship is raising the participation of young people in the democratic processes and the decisionmaking processes in the region of SEE. The SEE Youth Gathering was held in Ohrid on 10 and 11 September, attended by representatives from: Albania, Bulgaria, Bosnia and Herzegovina, Serbia, Slovenia, Croatia and Montenegro. The Ohrid Process was launched at this gathering, aimed at providing young people’s participation at local, national and regional level. At the Ohrid event, the Ohrid Process Declaration on “Youth and Decision –Making: Towards Greater Inclusion and Ownership” was adopted, which reaffirmed the political will and efforts of the SEE countries for promotion of the youth participation, it welcomes the Ohrid Process launching and “take note of the idea of gradual
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foundation of Youth Council for SEE”. This opens the path for steady development of the idea on establishing the SEE Youth Council as a regional structure that could stimulate the youth inclusion in the political processes of the countries in the region and contribute to the democratic progress and prosperity of the SEE region. At wider political level, Foreign Minister Antonio Miloshoski as the chairman over the Committee of Ministers of the Council of Europe, through the visit to Georgia that was realized together with the Council of Europe’s Secretary-General from 1 to 4 July 2010, assisted in adopting the decision of the Committee of Ministers connected to the consolidated report of GeneralSecretary Thorbjørn Jagland on the future possible engagement of the Council of Europe in Georgia. Thus, an opportunity is opened for co-operation of the Council of Europe in the field of human rights protection in Abkhazia and South Ossetia, regions that were affected by the conflict in 2008. Likewise, the chairman held meeting on two occasions (1 June and 2 November 2010) with high representatives of Bosnia and Herzegovina, whom he conveyed the assistance the Council of Europe is offering on the required constitutional reforms in this country with which they ought to harmonize the election legislation with the provisions and standards of the European Convention on Human Rights. Namely, to enable the representatives that do not belong to the three constituent people in Bosnia and Herzegovina to have the right to stand for elections to the House of Peoples of Bosnia and Herzegovina (the second chamber of Parliament) and to the Presidency of Bosnia and Herzegovina (the collective Head of State), which is connected to the implementation of the Court’s judgment in the case Sejdic and Finci vs Bosnia and Herzegovina. The meeting of Foreign Minister Antonio Miloshoski, chairman of the Committee of Ministers of the Council of Europe, with European Commission Vice-President Vivian Reding on 19 July in Brussels gave an additional impetus to the launched talks between the Council of Europe and the European Union for the Union’s accession to the European Convention on Human Rights and further promotion of the cooperation between the Council of Europe and the EU on the basis of the 2007 Memorandum of Understanding. In the framework of the chairmanship, except for the realized events in the country, President of the Republic of Macedonia, H.E. Gjorge Ivanov, Prime Minister - Nikola Gruevski, Deputy PM for European Affairs – Vasko Naumovski and other ministers and representatives of the Government of the Republic of Macedonia held speeches before the bodies of the Council of Europe and had the opportunity to express their views on the role of the Republic of Macedonia as the Chair of the Committee of Ministers, on the Macedonian internal situations, on our relations with neighboring countries and our foreign policy priorities.
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The 15 anniversary of the accession of the Republic of Macedonia to the Council of Europe was marked on 9 November in Strasbourg, with an occasional address by Minister Miloshoski followed by a corresponding cultural event. The Republic of Macedonia handed over the Chairmanship of the Committee of Ministers to Turkey on 10 November 2010.

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The Macedonian Foreign Policy Journal

CROSSROADS

May-November 2010, Vol. II, No. 3

The articles published in CROSSROADS do not necessarily represent the views of the editors or the publisher. The publisher is not liable for errors. All rights reserved. No parts of this publication may be reproduced in any form without permission from CROSSROADS.

Design: MIC & Simco Sandulovski Print: Arcuss Design, Skopje Circulation: 1,500

May-November 2010

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