Contents | Key Points | Foreword | Preface | One | Two | Three | Four | Five | Appendixes: 1 2 3 | Notes | Author

The Quest for Democratic Security The Role of the Council of Europe and U.S. Foreign Policy

Building and Consolidating Democratic Security

This section addresses the practical application of the school-of-democracy concept. Before and after entering the council, member states go through a process of evaluation, assistance, and cooperation in democratic development and monitoring of commitments made at the time of accession. A few case studies (Estonia, Romania, and Russia) illustrate and assess the effectiveness of the council’s procedures.

Evaluating Readiness for Membership: The Admission Process
If the council is to remain a community of values—even in its less stringent interpretation as a school of democracy—the various stages of the admission procedure should establish that the applicant country is ready to become part of that community. Accordingly, the procedure to assess the conditions of membership (namely, in Articles 3 and 4 of the statute and the Committee of Ministers’ requirement to consult the Parliamentary Assembly before issuing an invitation) has become more refined over the years, particularly since the disappearance of the Iron Curtain.

     First, there is now a preparatory stage of membership, in the form of special guest status with the Parliamentary Assembly. This was introduced in May 1989, before Gorbachev’s visit in July of that year. The Parliamentary Assembly thereby applied the school-of-democracy concept, in a very practical sense, before the term came into general usage.⁵⁰ The assembly’s rules of procedure stipulate that “the Bureau may grant Special Guest Status to national legislative assemblies of European Non-Member States which have signed the Helsinki Final Act of 1 August 1975, the Charter of Paris for a New Europe of 21 November 1990, accepted the other instruments adopted at the OSCE conferences, and which have signed and ratified the two United Nations Covenants of 16 December 1966 on civil and political rights and on economic, social and cultural rights . . . (Rule 55a).”⁵¹

     Under special guest status, nonmember parliamentary delegations can participate in debates in plenary session and in the work of committees, though without the right to vote. They are accorded the same number of seats as if they were full members, except that they do not have substitutes. For countries where no genuine parliaments had been in existence until 1989, the new status offered practical training in the fundamentals of parliamentary democracy. Most of the Central and East European guest members, both former members of old communist assemblies and new members of parliament, quickly learned to participate in parliamentary debates and committee work and to abide by parliamentary rules of procedure.

     The assembly instituted special guest status (an ingenious invention of Peter Sager, former member of the Swiss delegation) in 1989, and it became an important “preparatory school” for full membership.⁵² It taught politicians who had no previous experience with democracy the “rules of the game” to be observed in the plenary sessions and committees of a democratic assembly. These politicians, as well as their delegation secretaries and assistants, had to become familiar with the assembly’s specific rules of procedure. As members of the assembly, they had to learn, for example, to respect the rulings of the chair, to distinguish between a genuine point of order and a disguised intervention on matters of substance, and to abide by limits on speaking time. It took some time for some of these guest politicians to understand that they were expected to speak as parliamentarians and not as representatives of their respective governments. This is not always easy when sensitive national interests pit one delegation against another. At the same time, guest politicians had to accept that the council’s Parliamentary Assembly was not the place to sort out domestic political differences.

     As of August 1998, four nonmember parliaments still hold special guest status: Armenia, Azerbaijan, Bosnia and Herzegovina, and Georgia. The special guest status of Belarus was suspended in January 1997 as a consequence of the 1996 unconstitutional election of a new parliament and limits on democratic freedoms (including freedom of the press) under the authoritarian regime of President Aleksander Lukashenka. All five of these countries have formally applied for Council of Europe membership.

     A prospective member will normally make inquiries before submitting a formal application, to ensure that it will not be rejected outright. The application letter is addressed to the secretary general, who forwards it to the Committee of Ministers. In the past, the committee immediately transmitted it to the assembly for opinion. In recent years, it has become the practice for the Committee of Ministers to proceed to a preliminary exchange of views, after which it may communicate to the assembly some basic considerations on matters it wishes explored. Although the assembly’s opinion is not legally binding, it does have political significance. There is now general agreement that the Committee of Ministers would not invite a state to become a member against the Parliamentary Assembly’s will.⁵³

     In preparing its opinion, the assembly will consider the internal legal and political order of the candidate state in relation to council’s standards. The first step is to appoint a group of eminent lawyers to undertake a legal appraisal. This step was introduced at the suggestion of the Russian special guest delegation when the council began considering the membership applications of the three Baltic countries. The Russian delegation maintained that these states, especially Estonia and Latvia, violated the human rights of their Russian minority communities and suggested that this situation be examined before the council proceed any further with the admission procedures. The assembly followed this suggestion by appointing for each of these states a team consisting of one member of the Court and one member of the Commission of Human Rights (who acted more in a personal capacity). The method has since been applied to all candidates—including Russia, for which a team of six judges and commissioners was appointed.

     On the basis of the legal experts’ report, the assembly rapporteurs continue their work. On average, the procedure takes two years, sometimes longer, as in the cases of Russia and Romania. When the competent committees (now the Political and Legal Affairs Committees) come to the conclusion that membership can be recommended, they prepare a draft opinion, which requires approval by a two-thirds majority in plenary session.

     The opinion first evaluates the country’s internal situation, including steps taken to adapt to Council of Europe standards (for example, free and fair elections, constitutional and legal reform, and accession to key conventions). In the past, the opinion then simply concluded, in the terms of Article 4 of the statute, that the applicant state was considered “able and willing to fulfill the provisions of Article 3” (that is, the basic membership conditions). Only occasionally, as in the case of Liechtenstein, did the assembly express additional expectations.

     Since the mid-1980s, it has become a rule that no state can become a member without simultaneously signing and promising to ratify the ECHR. Since 1989, this includes accepting the right of individual petition and recognizing the court’s jurisdiction. As mentioned earlier, the ECHR (the council’s “Bill of Rights”) is now considered part of the organization’s “constitutional law,” and the Court of Human Rights has developed into a kind of “Supreme Court of Europe” in matters pertaining to human rights.

     During recent years, the number of additional commitments by applicant states recorded in the assembly opinions has become larger, particularly since 1995.⁵⁴ Thus, the opinion on Latvia contains thirteen such commitments; that on Moldova, eighteen; on Albania, seventeen; on Ukraine, twenty-three; on Macedonia, twenty; on Russia, twenty-five; and on Croatia, twenty-nine. This striking increase in the number of commitments does not necessarily imply that the situation in one country is less satisfactory than in another. Rather, it reflects a tendency on the part of the assembly to become more perfectionist. Some observers consider it unfair to new member states to impose conditions that have not been met by some of the older members. It could also be argued that the new members that acceded since 1990 were treated unequally simply because the council—like all other European organizations—was unprepared for the changes in Central and Eastern Europe, and that the subsequent enlargement process went too fast. As such, the council could not define a clear enlargement policy in good time.

     Some have argued that in the Committee of Ministers, certain commitments imposed by the assembly go well beyond what is strictly required by the statute. For example, commitments to sign and ratify all protocols to the ECHR or to adhere to specific conventions (anti-torture, minority rights), which are not generally binding membership conditions, are seen as excessive. This is not surprising. If some of the same conditions were imposed on a number of older member states, they would indeed not qualify for membership. Yet, if the assembly asks more of the new member states, the additional requirements appear justified in countries that have been under totalitarian regimes for many years. Additionally, new members’ adherence to Council of Europe legal instruments could possibly make the network of common legal standards weightier and place moral pressure on older members not to lag behind.

     However, this asymmetry of commitments may have a negative effect in the long run. As new member states perceive that older members do not follow the same rules, new members may feel less obliged to abide by their commitments, and the community of values may indeed become a diluted community. In other words, the Council of Europe may indeed face a fundamental trade-off between its role as a community of values and that of a school of democracy for the new East-Central European member states. The debate on such a trade-off was rekindled in mid-1997 by none other than the council’s outgoing deputy secretary general, Peter Leuprecht, who seized the occasion of his resignation to express his disagreement with the council’s enlargement policy.⁵⁵

Cooperating for Democratic Development: Programs of Assistance and Cooperation
In the wake of the democratic revolutions that swept over Central and Eastern Europe during 1989–90, it was clear that toppling the communist regimes was necessary but not sufficient to establish democracy as the alternative to totalitarian rule. Institutions, expertise, and experience were all lacking. Furthermore, the collapse of Soviet-style command economies, doomed as they were, entailed the risk of serious economic crises. As a consequence, the emerging democracies of Central and Eastern Europe faced substantial obstacles to their consolidation. They required new constitutions describing the functions and offices of the state and the selection process for those offices, a thorough revision or replacement of laws inspired by communist ideology, civilian control of the military, and the development of human rights protections. All had to be put into action before these countries could even be considered “paper” democracies (that is, democracies in name only). Simultaneously, the states’ leaders had to stabilize and liberalize their economies; protect their borders from international threats; address internal conflicts among ethnic, regional, and religious groups; and maintain their own authority and stability. Naturally, they sought assistance from outside.

     Individual states, as well as intergovernmental organizations and NGOs attempted to facilitate and influence this transition process. In consultation with the countries concerned, and according to their needs, the Council of Europe developed two types of assistance and cooperation programs: intergovernmental and interparliamentary programs, the former being by far the more important in financial terms. Democratic development assistance is extended, where requested, before and after accession. The 1998 program covers activities in all sixteen new member states from Central and Eastern Europe as well as in five nonmember states that are candidates for membership (Armenia, Azerbaijan, Belarus, Bosnia and Herzegovina, and Georgia).⁵⁶

     On the intergovernmental side are four general programs of democratic assistance: Demosthenes and Demosthenes-bis (for new member countries and for candidate countries, respectively), Themis (and Demo-Droit), LODE (for “LOcal DEmocracy”), and the secretary general’s New Initiative (for European countries of the Commonwealth of Independent States, or CIS).⁵⁷ Demosthenes and Demosthenes-bis are umbrella structures that incorporate the Council of Europe’s various programs on human rights, minority rights, equality, legal cooperation, social affairs, youth, the media, cultural heritage, and education. Activities under the Demosthenes and Demosthenes-bis programs aim at assisting candidate and new member states to fulfill the statutory requirements of membership as well as specific commitments undertaken when joining the organization. As such, they contribute to the progressive, smooth integration of the states concerned in the various structures and the work program of the council and its legal and conventional practices. Particular attention is paid to the compatibility of existing (or planned) national legislation with European standards as enshrined in the various European conventions and, primarily, the ECHR.

     In its Themis and Demo-Droit programs, the Council of Europe sponsors legal training for agents in the judicial and law enforcement process—from judges, lawyers, and notaries to prison officials and the police. The goal of these programs is to make law enforcement and the functioning of the judiciary compatible with the rule of law as understood in an established democracy. The programs focus on redefining the role of the police and public prosecutors and reforming the trial process, the prison system, the legal profession, and the justice ministries. Finally, in cooperation with the Congress of Local and Regional Authorities of Europe,⁵⁸ the Council of Europe has designed a variety of programs to enhance the functioning of democracy at the local level. These programs are in line with the principles enshrined in the 1985 European Charter of Local Self-Government, recognizing that over centralization was a prominent, antidemocratic feature of these former communist systems. These activities for local officials and administrators are grouped together in the council’s LODE program.

     Each program seeks to address the specific problems within its jurisdiction through the training of Central and Eastern European officials, policymakers, lawyers, journalists, and other political or civic leaders. It is a cooperative endeavor, with individual projects set up at the behest of a member state or a membership candidate seeking technical advice from the council. In other words, democratic assistance programs are initiated by the executive or the legislature of the new or prospective member state. The programs consist of exchanges of representatives and officials, training sessions and seminars, and advisory reports tailored to the needs of the applicant country. The range of services the Council of Europe offers is broad and multifaceted.⁵⁹ The categories of democratic assistance activities include the following.

     Expert missions. The Council of Europe sends teams of experts to review host-country legislation or to make proposals regarding particular legal or constitutional problems, such as citizenship for ethnic or linguistic minorities, election systems, gender equality in the law, broadcasting, protection of intellectual property rights, social security, and health care.⁶⁰

     Experts from the Council of Europe or those acting on behalf of the council advised the authorities in Estonia on the drafting of a new citizenship law, since the country had been criticized for making language tests for citizenship too difficult.⁶¹ In fact, during the Soviet era, the Russian-speaking population had never found it necessary to learn Estonian, which is known to be a particularly difficult language. Experts from Council of Europe member states, employing similar tests, advised the Estonian authorities and thus directly influenced the form and content of the tests. The 1997 program for Estonia provided for specific legislative expertise from Council of Europe officials or experts from member countries on, for example, constitutional law, the penal code, and the code of criminal procedure.

     For Romania, the subjects covered in 1997 concerned delinquency in meeting the council’s commitments on tourism, immigration law, drug trafficking and money laundering, and the trafficking of arms and radioactive materials.

     For Russia, expertise was provided concerning draft laws on the police and on the execution of sentences, and their compatibility with the ECHR.

     Study visits. Officials, lawyers, magistrates, prosecutors, police, prison staff, journalists, civic leaders, and technical advisors from Eastern and Central Europe are hosted at the Council of Europe, or by institutions in member countries with the sponsorship of the council, to gain first-hand experience in the conduct of their respective professions in democratic societies or to participate in relevant conferences.

     For example, in the case of Estonia, the 1997 program included study visits by lawyers and members of the judiciary to the council’s Strasbourg headquarters to acquaint them with the functioning of the Court and the Commission of Human Rights, and with the use of their databases. Another study visit was devoted to ascertaining the compatibility of domestic laws with the requirements of the ECHR.

     The program of visits to the council headquarters and to member countries included seminars on the application of the European Social Charter, the anti-torture convention, issues of gender equality, the media, local authorities, police training and the prison system, and different aspects of European legal cooperation.

     In the case of Romania, the 1997 program included similar types of study visits in the area of human rights, with emphasis on members of the judiciary.⁶² One study visit concerned the role of notaries as guarantors of legal security.

     Concerning Russia, study visits to Strasbourg were devoted to the European Social Charter (in preparation of its ratification by Russia), and to gender equality during visits to Italy and Denmark. Several visits are planned for the personnel of Russia’s governmental Commission on Human Rights to examine the compatibility of domestic law with the ECHR.

     Training programs. The council conducts or contributes to the organization of training programs in older and new member states, as well as to seminars, workshops, and conferences for civil servants, the media, prison officials, judges, lawyers, leaders of political parties, NGO officials, and others who work with various aspects of the rule of law, pluralist democracy, and human rights.

     The 1997 program included a training seminar in Tallinn, Estonia, organized together with the Estonian Ministries of Foreign Affairs and Justice. It was designed for members of the procuracy and police on the implementation of the anti-torture convention. Another item in the program was a training workshop for police officers assigned to juvenile offenders.

     In the case of Romania, the Council of Europe assists the country’s magistrates school through the provision of expert lecturers (from the council or from member states) and documentation. “Training for trainers” and a training seminar on the European Social Charter are also foreseen. Further training programs concern conflict prevention in minority issues and interethnic relations.

     For Russia, the 1997 program included training for judges and, with the participation of experts from the council’s member states, for elected representatives at the local and regional levels on budgetary and taxation issues and on foreign economic relations. Other training programs concentrate on the ECHR, assistance in establishing a human rights center, the social charter, and the role and functioning of NGOs.

     New units have been added to the council’s secretariat to identify requirements and to manage programs. General responsibility for intergovernmental cooperation and assistance programs lies with the Directorate of Political Affairs. A new division was established within the Directorate of Legal Affairs for legal cooperation with the countries of Central and Eastern Europe. Similar specialized units now exist in the Directorate of Human Rights and the Directorate of Environment and Local Authorities.

     In addition to the intergovernmental (or interexecutive) cooperation programs, the council’s Parliamentary Assembly established a pan-European Program for Interparliamentary Cooperation (known as Demo-Parl) in 1991. Its purpose is to provide information and training to parliamentarians and their staffs in three general areas: the functioning of parliaments; the development of legislation in key areas, such as economic reform, human rights, international law, industrial relations, and agriculture and forestry; and documentation, translation, and interpretation. Under the Demo-Parl program, the council also monitors the obligations and commitments of member states and observes presidential, parliamentary, and local elections in new and prospective member states. It should be noted that the observation of elections has a specific significance for the Council of Europe, since it is part of examining a country’s qualifications for membership.

     Regarding the evaluation of these programs, it is not always easy to measure their effectiveness; however, in certain cases, the results are clear. For example, with the advice of council experts and the concurrent pressure of OSCE, Latvia finally adopted a citizenship law that is generally in accordance with the council’s principles and thus removed the last obstacle to its admission to the council. Russia, Romania, and other prospective members at the time revised their codes of criminal procedure to weed out legal remnants of their totalitarian past. Romania’s parliament considered draft legislation to ensure the independence of the judiciary. The same democratic reforms in constitutional and electoral laws are evident in other East-Central European states.

     It is obviously much more difficult to evaluate the effect of seminars and training courses meant to convey to individuals democratic principles and democratic know-how and instill democratic behavior in office and in everyday life. Expenditures for such programs are “long-term investments” whose effects cannot be appraised in the short time since their inception.

     The European Commission for Democracy through Law (otherwise known as the Venice Commission) was established in 1990 on an initiative of the Italian government to provide expert advice and opinions on constitutional and legal matters to “affiliated” states (new and prospective council members and others—for example, CIS states) on request.⁶³ The commission’s experts focus on specific issues pertinent to the state in question, transnational legal issues, and the documentation of constitutional case law across Europe. The commission also engages in research, organizes seminars, and gives opinions on, for example, draft constitutions, electoral laws, and legislation for the protection of minorities.⁶⁴

     The creation of the Venice Commission was first met with a certain degree of skepticism. Was it necessary to establish yet another body inside the Council of Europe framework but independent of the council’s institutional hierarchy—the Committee of Ministers, the Parliamentary Assembly, and the Secretariat—whose work would somewhat overlap the commission’s? Experience has shown, however, that the services of the commission, perhaps because of their independence from governmental structures, are appreciated by Central and Eastern European countries as a useful complement to the council’s official assistance and cooperation programs. However, not all Council of Europe member states are committed to the commission’s work. The United Kingdom, among others, does not participate. The commission meets four times a year in Venice; subcommissions (on protection of minorities, federal and regional states, international law, constitutional law, and democratic institutions, among others) meet as often as necessary. Members write opinions and studies throughout the year.

     The Council of Europe also set up Information and Documentation Centers in Eastern and Central Europe to enhance knowledge of and public access to the council’s activities. These centers are normally established in universities, public libraries, or NGO offices. In addition to providing information to individuals, organizations, and government bodies, some centers also conduct education and training programs to raise public awareness of democratic principles and their application to citizens’ daily lives. Because Council of Europe publications and documents are usually published in the council’s official languages (English and French) only, the centers also have translated and published key texts into the official languages of the respective countries. To date, centers have opened in Bulgaria, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Macedonia, Moldova, Poland, Russia, Slovakia, Slovenia, Romania, and Ukraine.

     The effectiveness of these centers depends on several factors, such as the number and qualifications of staff, their sense of initiative, and their dynamism; the quality of available facilities; and the accessibility of the centers (most are located in capital cities, but some are in suburban locales and thus are used less frequently). Among other things, the centers’ effectiveness is primarily a function of available funding. Thus, regarding the location of offices, the council largely relies on what the host country offers.

     The democratic assistance programs, which account for approximately 10 percent of the council’s total annual budget, are a major focus of council energies and resources. The council spent more than Fr 100 million, or 14.28 million European Currency Units (ECUs) —approximately $17.25 million—in 1997 to facilitate the consolidation of democracy in Central and Eastern Europe. To this amount should be added the substantial voluntary contributions of member states and observer states (like Japan), as well as the European Commission’s contribution to various joint programs. Further, the Council of Europe often cooperates with other partners—governmental and nongovernmental—in the implementation of various activities.⁶⁵ This may be more than any other international organization spends on democracy-building in the region. Yet given the magnitude of the task, it is not enough. As the council’s secretary general, Daniel Tarschys, said to the Parliamentary Assembly on April 22, 1997, “Penny-wise governments tell us that they have no money for this. Let us have the courage to expose the utter shortsightedness of that argument. The tragedies of the last few years [in the former Yugoslavia] have cost billions and billions to our taxpayers, not to mention the terrible human suffering involved. Preventive action, by comparison, costs peanuts.”

Monitoring Democratic Reform
The 1949 Statute foresaw only the possibility of excluding a state that gravely violated its obligations under Article 3. It did not envisage a specific monitoring procedure. The problem of evaluating members’ democratic practices became significant, qualitatively and quantitatively, with the wave of new accessions beginning in 1990. The council introduced monitoring in 1993, and even then only to overcome Hungary’s resistance to the admission of Slovakia.

     Under Order 488, the Parliamentary Assembly mandated the Political and Legal Affairs Committees “to report to the Bureau [of the assembly] at six-monthly intervals until all undertakings [by new member states] have been honored.” Members of the Committee of Ministers criticized the order because it referred to “new member states” only. While this was justified on practical grounds, it implied a distinction among member states. Some representatives saw in this text an attempt to create a two-tier system (that is, older and newer members) inside the council. Therefore, the next text the assembly adopted on the same subject (Resolution 1031) referred to all member states:

All member States of the Council of Europe are required to respect their obligations under the Statute, the European Convention on Human Rights, and all other Conventions to which they are parties. In addition to these obligations, the authorities of certain States [essentially, new members from Central and Eastern Europe] freely entered into specific commitments on issues related to the basic principles of the Council of Europe during the examination of their request for membership by the Assembly. The main commitments concerned are referred to in the relevant opinions adopted by the Assembly.

Under Order 508, persistent failure to honor commitments could lead the Parliamentary Assembly to revoke the credentials of delegations and, if the situation fails to improve, to recommend that the Committee of Ministers take action under Article 8 of the statute (suspension and exclusion).

     What does monitoring consist of? Resolution 1031 refers to obligations (generally applicable to all member states) and to commitments (that is, specific pledges made at the time of accession to undertake certain action on democratic reform or to adhere to Council of Europe legal instruments, such as the Convention on the Prevention of Torture or the Framework Convention for the Protection of National Minorities). In fact, the assembly’s monitoring process also takes into account expectations it may have expressed in its respective opinion on a membership application. For example, in its Opinion 195 on Croatia, the assembly lists nine expectations, including respect of international humanitarian law, effective guarantee of the rights and freedoms of national and ethnic minorities, freedom of the media, cooperation with the OSCE mission in Croatia, and revision of the local administration and autonomy act.

     Monitoring is carried out by specially appointed rapporteurs. When they are in the member state concerned, they meet not only with ministers and other government representatives, parliamentarians, members of the judiciary, and police, but also with NGOs, religious representatives, representatives of ethnic minority communities, and human-rights and other groups.

     What is the effect of monitoring? In most cases, monitoring cannot result in an immediate remedy to an imperfect democratic order. However, this does not necessarily reflect a lack of good will on the part of the states concerned. Certain promises may have been made hastily to meet the assembly’s demands and thus obtain acceptance as a member of the council. Undue pressure after admission to fulfill these promises within a given period of time may lead to inadequate results. Important measures, such as reform of the criminal code or other key legislation, to make a new member more compatible with the standards of a democratic society take time. What matters is that the assembly continuously reviews the implementation of member countries’ commitments.⁶⁶

     If it becomes clear that a state is not moving beyond verbal assurances, the assembly should muster the political will to apply the means envisaged in its own adopted texts. One example is the aforementioned Order 508, which makes it possible to exclude a delegation from the assembly, or to initiate the procedure for the exclusion of a state from the council. But will there always be a majority to act when the membership of a major member state is in question, with all the political consequences suspension or exclusion may entail? For example, what would be the consequences if the council excluded Russia? This would no doubt give rise to grave concerns not only within the organization but beyond (including in the United States). At the same time, it can be argued that what may appear politically inopportune in the short term may have irreparable effects on the council’s long-term credibility. Apart from collective moral pressure—the effectiveness of which should not be lightly brushed aside—the council has no other sanctions than those mentioned at its disposal.

     In this vein, the assembly took an important step when it decided in Order 508 that monitoring reports should be submitted not to the bureau of the Parliamentary Assembly, but to the plenary.⁶⁷ Indeed, it may have been easier for the targeted state to induce members of the bureau (whose meetings are not public) not to pursue the monitoring process in general or on a particular issue. Reporting directly to the plenary has a double effect. On the one hand, it prevents negative reports from being swept under the carpet. On the other, the threat of a public debate in the presence of the media, including those of the country concerned, makes the authorities of that country normally more wary and more inclined to move ahead with the necessary reforms.

     Numerous monitoring reports have already come to the assembly’s bureau and to the plenary. Roughly, assembly monitoring covers the following areas:⁶⁸

• Separation of powers, notably between the executive and the judicial branches of government.

• Independence of the judiciary, access to justice, criminal justice, the role and status of public prosecutors, the status of attorneys, and autonomy of the bar.

• Electoral law and proper conduct of elections, including campaign financing.

• The law of political parties.

• Parliamentary law, pluralist composition of parliament, minority representation, control over the executive, immunities, and rights and duties of the opposition.

• The use and control of special powers in emergency situations.

• Local and regional self-government.

• The relationship between domestic law and international human rights treaties.

• The effectiveness of constitutional and legal guarantees for human rights.

• Police training, prison conditions, and prison administration.

• Respect for privacy and property rights (restitution, fair compensation).

• Freedom of conscience and worship, freedom of expression, and independence of the media.

• Freedom of association, freedom of movement, and freedom of assembly.

• Equality between men and women.

• Minority rights, discrimination, citizenship legislation, and status of and education in minority languages.

• Policies to combat racism, anti-Semitism, and xenophobia.

• Settlement of international and domestic disputes by peaceful means.

     After repeated discussions, the Committee of Ministers decided to set up its own monitoring procedure parallel to that of the assembly. To some extent, this was a kind of competition for influence between the council’s two statutory bodies. The committee felt that a matter of such importance, which could lead to initiating the exclusion procedure for a member state, should not be left entirely in the hands of the assembly. Indeed, under the statute, it is for the Committee of Ministers to decide on the application of Article 8 (although it cannot do so without the assembly’s advice and would not normally overrule the assembly). On November 10, 1994, the committee adopted a “Declaration on Compliance with Commitments Accepted by Member States of the Council of Europe.” It agreed to “consider the question of the implementation of commitments concerning the situation of democracy, human rights and the rule of law in any member State which will be referred to it either by a member State, by the Secretary General, or on the basis of recommendations of the Parliamentary Assembly.”⁶⁹ It also decided to seek relevant information available from other sources, such as the OSCE. The committee further asked the secretary general to “collect information or to furnish advice.” Thereupon, the Secretariat assembled data on member states’ respect of their obligations and specific commitments. So far, the reports it has submitted remain confidential.

     If the Committee of Ministers succeeds in developing the 1994 declaration into an effective monitoring instrument, it could usefully complement and sustain the efforts of the assembly. However, the Committee of Ministers is a diplomatic body, with the strengths and weaknesses that implies. While it is backed by the authority of governments, it is more exposed to national pressures than is the assembly. The committee is unlikely to take decisive action unless there is a particularly grave and persistent violation of democratic rules and human rights (as in the case of the Greek Colonels’ regime in 1969). This evaluation of the Committee of Ministers’ role in monitoring member states’ commitments, based on past experience, may need to be corrected in the future. However, for the time being, the assembly’s continuous monitoring activities and the publicity of its reports promise to produce better results.

Case Studies: Estonia, Romania, and Russia
Estonia joined the Council of Europe on May 14, 1993. It agreed to sign and ratify the ECHR, base its policies regarding national minorities on the aforementioned Assembly Recommendation 1201, transfer responsibility for prisons from the Ministry of the Interior to the Ministry of Justice, institute a moratorium on executions, sign and ratify the Convention on the Prevention of Torture, bring its criminal and civil codes into line with European standards, and treat fairly its “nonhistoric” Russian minority (that is, ethnic Russians who moved to Estonia following its annexation by the Soviet Union in June 1940).⁷⁰ Over the next three years, assembly rapporteurs visited Estonia three times. On each occasion the council published a report on their findings.⁷¹

     Estonia ratified the ECHR with considerable delay in April 1996 and announced that ratification of Protocol No. 6, on the abolition of the death penalty, would be forthcoming shortly. It also ratified the Convention on the Prevention of Torture and the Framework Convention for the Protection of National Minorities. The rapporteurs considered these to be the “most important” of Estonia’s commitments and therefore recommended closing the monitoring procedure, concluding that the Estonian authorities had made significant progress toward fulfilling their obligations and commitments. In January 1997, the Parliamentary Assembly followed this recommendation.⁷² In March 1998, the Estonian parliament approved the ratification of Protocol No. 6.

     In its resolution closing the monitoring procedure, the assembly nonetheless mentioned serious, ongoing problems with three aspects of Estonia’s political and legal system:

1. The detention of refugees and asylum-seekers. Estonia’s policy on these groups allows them to be detained as common criminals. In the opinion of the rapporteurs, this policy, especially in the absence of asylum procedures, violates the ECHR’s Article 5 (right to liberty and security of person) and Article 6 (right to a fair and public hearing within a reasonable time by an independent and impartial tribunal). Unfortunately, Estonian public attitudes toward refugees reflect fears that the country will be overrun by asylum-seekers from Russia. The assembly thus reproached Estonia for detaining refugees and urged the authorities to both adopt appropriate legislation in keeping with international human rights standards and sign and ratify the UN Convention on the Protection of Refugees.

2. The treatment of members of the nonhistoric Russian-speaking minority. The rapporteurs noted a reluctance on the part of Estonian authorities to integrate nonhistoric Russians fully into Estonian society, finding that policies on both citizenship and residence permits for noncitizens, along with the lack of training facilities for learning the Estonian language, discriminated against Russian-language speakers.⁷³ In its resolution, the assembly urged Estonia to address these concerns.

3. The “deplorable” conditions of prisons and detention centers. The report, which included a description of Estonia’s one pretrial detention center, noted that the Estonian prison system had not improved sufficiently since the country’s accession. Though plans to reform the system are in the draft stages, money—and public willingness to spend it on prisons—appear lacking. The assembly urged Estonia to improve the state of its prison system, which violates the anti-torture convention, without delay.

     Romania was admitted to the Council of Europe on October 7, 1993 on the understanding that it would complete certain reforms within given time limits (Opinion 176); monitoring of these commitments began shortly thereafter. The Political and Legal Affairs Committees drafted an initial report after two Council of Europe rapporteurs visited Romania in March 1994.⁷⁴ A subsequent visit by three assembly rapporteurs in December 1995 resulted in an “introductory memorandum” addressed to the Romanian authorities.⁷⁵ Together with the response of the Romanian authorities, who answered point by point, the memorandum was made available to the public in November 1996.⁷⁶ The final report was issued in 1997, again on the basis of on-site information gathered by a group of assembly rapporteurs.⁷⁷

     In the opinion of the group, Romania had made sufficient progress by 1997 to warrant closing the monitoring process. The Romanian government had ratified the ECHR and all its protocols, the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and its protocols, and the Framework Convention for the Protection of National Minorities. However, the monitors expressed concern that certain aspects of the Romanian legal and criminal codes and certain government practices were not in keeping with Council of Europe standards. The group’s report focused on seven areas where reform is still necessary: the independence of the judiciary; provisions of the penal code classifying homosexuality as a criminal offense and prohibiting speech considered insulting or defaming; deplorable conditions in Romanian prisons; the situation of Romanian orphans; the disposition of property confiscated from churches (a matter where Romania, of course, does not stand alone); the treatment of former political prisoners and certain communities under the communist regime; and ongoing problems of intolerance, xenophobia, and racism, particularly regarding the Roma (Gypsy) population.

     Most of these issues were mentioned in the Assembly’s opinion on Romanian accession in 1993. Some are commitments that remain unfulfilled, and others are expectations expressed by the assembly. Although the Romanian government has not completed these reforms, it has made progress. For example, in keeping with the council’s recommendations, a bill to reform the judicial system was sent to the Romanian parliament in late spring 1997 and was eventually adopted. The legislation sought to address in particular the concerns of the council’s Parliamentary Assembly regarding an article in Romania’s 1992 Judiciary Act that constituted a potential threat of executive interference in the independence of the judiciary.⁷⁸ In addition, although the provisions of the penal code regarding homosexuality have not been repealed, Romania’s Constitutional Court struck them down, making it im possible to convict an individual on such charges.⁷⁹ Furthermore, the government appointed a secretary of state for minorities, set up a special parliamentary committee to review legislation dealing with minorities, and introduced a bill to amend education legislation so that individuals may learn in their mother tongues up to and including university education. All this shows that monitoring can indeed be effective.

     Closing the monitoring process is not necessarily a permanent decision. It is done with conditions—in this case that Romania address the assembly’s remaining concerns within one year or face a reopening of the monitoring process.

     The Russian Federation acceded to the Council of Europe on February 28, 1996. Apart from Croatia, Russia entered into more commitments than any other new member state. Assembly Opinion 193 includes approximately twenty-five specific commitments and a number of additional expectations of the assembly. This is in itself not surprising, given the size of the country and its population, the division of the country into eighty-nine republics and autonomous territories, and the political difficulties facing Russia’s leaders.

     Three central themes dominate the Council’s agenda regarding the Russian Federation:

1. The signature or ratification of some key Council of Europe conventions—for example, Protocol No. 6 to the ECHR on the abolition of the death penalty (signed in April 1997), the Charters for Regional or Minority Languages, and conventions on extradition and on mutual assistance in criminal matters.

2. Reform of Russian civil and criminal codes, the judicial and prison systems, the secret services,⁸⁰ and the armed forces.

3. Russia’s compliance with specific areas of international law, particularly with regard to Chechnya and cooperation with international humanitarian organizations, and international treaties of which it is a signatory, such as the Treaty on Conventional Armed Forces in Europe.

     Four months after Russia’s accession, the Committee on Legal Affairs and Human Rights opened a procedure to monitor Russia’s progress toward completion of its commitments. A year later the group of rapporteurs submitted an introductory memorandum to the com mittee and to the Russian parliamentary delegation for comment.⁸¹ The delay stemmed from the cancellation of two scheduled visits by the Russian authorities.

     Russia’s record in honoring its commitments appeared to be not quite exemplary. Political circumstances obviously hampered the Russian government’s efforts to comply with the council’s commitments.⁸² Nevertheless, the Duma (the Russian legislature’s lower house) approved ratification of the ECHR in February 1998, two years after acceding to the Council of Europe. The Council of the Federation (the legislature’s upper house) followed shortly afterwards. With Russia’s ratification, all Council of Europe member states are parties to the ECHR.

     However, the Duma signaled that, for the time being, it did not intend to approve the ratification of Protocol No. 6 on the abolition of the death penalty. This illustrates the relative value of commitments that are accepted by governments but not backed by legislatures. Russia has signed but not yet ratified a number of other protocols to the ECHR, as well as the Convention on the Prevention of Torture and Protocols Nos. 1 and 2, the Framework Convention on the Protection of National Minorities, the European Charter of Local Autonomy, and the European Conventions on Extradition and on Mutual Assistance in Criminal matters—all mentioned as commitments in Opinion 193. By August 1998, Russia had altogether ratified some thirty Council of Europe conventions or protocols—most of which, however, do not directly concern the democratization process.

     Regarding further commitments in Opinion 193, Russia has not adopted a new code of criminal or civil procedure; transferred authority for the administration of justice from the Ministry of the Interior to the Ministry of Justice; reformed the Office of the Prosecutor, the secret service (particularly regarding the Federal Security Service’s right to conduct criminal investigations and operate its own pretrial detention centers), and the armed services; developed an alternative to military service; revised Presidential Decree No. 1226 on banditry and organized crime (which, for example, allows for preliminary detention of up to thirty days where “sufficient evidence” exists of an individual’s involvement in organized crime); or improved conditions in prisons and detention centers to prevent inhuman treatment.⁸³

     The problem with many of Russia’s reforms is that even though the federation’s constitution protects the human rights and fundamental freedoms of individuals within its borders, the practical application of the respective provisions is politically unpopular in a country where the crime rate is high, the population craves law and order, and the application of certain standards (for example, prison conditions) is considered too costly. Many rights are rendered illusory by the conduct of the police, or by the fact that the judicial system is overwhelmed by one of the highest rates of arrests and consequentially lengthy periods of pretrial detention. Political initiatives to address crime or homelessness—including Presidential Decree No. 1025 (which provides for the detention and forced deportation of “vagrants and beggars”)—while intended to address significant threats to society, are nonetheless unconstitutional and in violation of international conventions and standards.

     While awaiting the Monitoring Committee’s full report, the Council of Europe’s chief concerns with Russia’s compliance have centered on the war in Chechnya and the refusal to sign and ratify Protocol No. 6 to the ECHR, on the abolition of the death penalty. As for Chechnya, in 1996 the assembly’s ad hoc Committee on Chechnya reviewed the Russian military’s violations of international humanitarian law—particularly its indiscriminate shelling and direct attacks on civilians—and condemned Russia for these acts. According to Human Rights Watch/Helsinki, Russia has not fulfilled its obligations to prosecute those responsible for human rights violations in Chechnya, initiating only a small number of judicial proceedings against Russian servicemen.⁸⁴

     Concerning Protocol No. 6, the State Duma, aware of the death penalty’s popularity in Russia, rejected by a large majority the bill to reform the corresponding part of the penal code in March 1997. This is another example of how official promises or firm commitments can be thwarted if there is no majority in parliament to adopt the corresponding reform legislation. Though an unofficial moratorium on executions has been in place since August 1996, the Council of Europe’s Parliamentary Assembly called an urgent debate in January 1997 on Russia’s failure to comply with its commitment to halt all executions from the time of accession. In Resolution 1111 (1997), the assembly warned Russia that if it did not take steps to fulfill this commitment, the assembly would consider not ratifying the parliamentary delegation’s credentials or would recommend more far-reaching measures to the Committee of Ministers. Since then, no more executions have been reported from Russia. In early August 1998, the country’s justice minister declared that he expected capital punishment to be definitely abolished by April 1999.⁸⁵

     On the same issue, it is interesting to make a comparison with Ukraine. In January 1998, the credentials of the Ukrainian delegation were contested in the assembly because executions continued. The Rules of Procedure Committee concluded in favor of approving the credentials, arguing that the abolition of the death penalty was not a statutory condition of membership, that it was not in the ECHR, and that Protocol No. 6 was optional. The plenary approved the report. No doubt it considered the exclusion of the Ukrainian delegation politically inopportune. However, should one conclude from the Rules of Procedure Committee’s reasoning that a country’s commitments before joining the organization are legally irrelevant? In such a context, the committee may have done a disservice to the assembly’s monitoring procedure.

     With regard to Russia, the monitoring process will obviously continue for some time, but political setbacks cannot be excluded. In 1996, assembly president Leni Fischer had this to say: “Given the difficult situation in Russia, we cannot expect democratic reforms to be carried out with ease. Not admitting Russia to the Council of Europe would have had devastating psychological consequences. Acceptance of Russia, on the other hand, gives the Council a vested right to supervise its progress towards democracy and the rule of law, applying gentle pressure.”⁸⁶

     Will “gentle pressure” eventually have the desired effect? The question is still open, and in this regard it may be appropriate to recall the discussion on the putative trade-off between the council’s roles as a community of values and a school of democracy.

Contents | Key Points | Foreword | Preface | One | Two | Three | Four | Five | Appendixes: 1 2 3 | Notes | Author

Home  |  Jobs  |  FAQs   |  Contact Us  |  Directions  |  Privacy Policy  |  Site Map

United States Institute of Peace  --  1200 17th Street NW  -- Washington, DC 20036
(202) 457-1700 (phone)  --  (202) 429-6063 (fax)
Send Feedback