Turning to the mini jubilee marking fifteen years of Serbia’s membership in the Council of Europe, Tobias Flessenkemper, Head of the Council of Europe Office in Belgrade, recalls that Serbia – by becoming a member – accepted to engage itself on the advancement of values to which the Council of Europe is devoted, such human rights protection, strengthening the rule of law and democracy.
With this in mind, Tobias Flessenkemper, Head of the Council of Europe Office in Belgrade, warns that Serbia has not yet fulfilled the recommendations of GRECO – the body of the Council of Europe devoted to the fight against corruption, although corruption is a problem recognised by a large number of citizens.
In this interview for CorD Magazine, Flessenkemper explains that the Venice Commission of the Council of Europe gave a green light to proposed changes to the Constitution in the field of the judiciary, but that the subsequent parliamentary debate should take into account the attitudes of people from the judiciary, who stated during the public debate that the proposed reforms would not exclude the possibility of political influence on judges and prosecutors.
Serbia became a member of the Council of Europe 15 years ago. How is Serbia doing in terms of the rule of law, citizens’ freedom and parliamentary democracy?
The 15th anniversary of Serbia’s membership in the Council of Europe can help us to understand how European cooperation and Serbia’s role have evolved.
In 2003 it was the State Union of Serbia and Montenegro that joined the Council of Europe as its 45th member state. Serbia remained a member after Montenegro became an independent country in 2006, then Montenegro joined as the 47th and currently most recent member state, in 2007.
Later, the legal-territorial set-up of Serbia further evolved, while at the same time Serbia engaged increasingly in cooperation with the Council of Europe. With regard to the values of our organisation – human rights, democracy and the rule of law – Serbian citizens and the government are participating in a number of important reform processes.
The government has identified the need to work on the independence of the judiciary by launching a process of reform that will probably last several years. Citizens are demanding the realization of their fundamental rights and freedoms, including by applying to the European Court of Human Rights in Strasbourg. The coming year will see also a number of our monitoring bodies present their results.
Serbia has not fully implemented any of the 13 recommendations it received from GRECO back in June 2015. The overall very low level of compliance with GRECO’s recommendations is “globally un-satisfactory”
GRECO, the Group of States against Corruption, found that Serbia has regressed according to some criteria. What is the situation?
Serbia, like all other 48 GRECO members, has been undergoing GRECO’s 4th evaluation round on corruption prevention in respect of Members of Parliament (MPs), judges and prosecutors. The last compliance report on Serbia, published on 15th March 2018, is publicly available at coe.int.
Serbia has not fully implemented any of the 13 recommendations it received from GRECO back in June 2015. The overall very low level of compliance with GRECO’s recommendations is “globally unsatisfactory”. Serbia is, thus, in GRECO’s non-compliance procedure.
Of course, it is better for citizens, businesses and the administration if recommendations issued to a country’s government are implemented in time. The principle of European cooperation is that national authorities comply with the standards they have obliged themselves to, but – most importantly – that they promised their own citizens and partner European states to uphold.
According to the Balkan Barometer of the Regional Cooperation Council, published in summer 2018, three out four citizens surveyed in Serbia agreed with the statement that the sectors evaluated by GRECO are influenced by corruption. Such levels of trust in the integrity of public institutions cannot leave us unconcerned.
Could you explain the role of the Venice Commission in regard to the discussion about strengthening the independence of the judiciary?
The Venice Commission, which is our expert body on democracy through law, was asked by the Serbian Government to provide its views on two sets of draft amendments of the Constitution regarding the judiciary.
Firstly, the Minister of Justice of Serbia requested an opinion on a set of draft constitutional amendments in April 2018, and the Venice Commission adopted its opinion at its 115th plenary session on 22nd-23rd June 2018.
The second set of draft amendments was prepared by the Ministry of Justice of Serbia after the adoption and submission of the Venice Commission’s opinion for public consultation on 18th September. Following public discussion and consultation between the Venice Commission and the Serbian Ministry of Justice, the second set of draft Amendments were modified and sent to the Secretariat of the Commission on 12th October 2018, just a week ahead of the October plenary session.
So, the Secretariat prepared a Memorandum examining whether and to what extent the text submitted to the Venice Commission on 12th October adhered to the recommendations contained in its opinion of 22nd-23rd June 2018. The Venice Commission took note of the Memorandum at its 116th plenary session, on 19th-20th October, and it was published. There was no time to prepare a fully-fledged opinion, nor was that even necessary since the revised amendments did not raise substantial new issues.
The question of whether recommendations are followed is typically assessed by the Secretariat of the Venice Commission. The Venice Commission’s opinions are based on international standards and the practices of other states. International standards exclude any political interference in the decision-making of courts.
When it comes to decisions on the appointments and careers of judges, international standards strive to establish a balance between judicial accountability and independence. They do not exclude democratically legitimate bodies having any influence on the careers of judges. They provide that ideally such decisions should be taken by judicial councils with a balanced composition, including both representatives of the judiciary and lay members, who may be elected by parliament, as is the case in Serbia, or appointed by various bodies.
The observations of members of the judiciary are important for the forthcoming parliamentary discussion and also for future work on the independence of the judiciary, for the benefit of the rule of law in Serbia. The amendments for judicial reform will still need to enter the parliamentary procedure. It is important to consider work towards a more independent judiciary as an opportunity to add value to the realisation of the individual rights and freedoms of all people living in Serbia.
The adoption of the law on “missing babies” in Serbia would be important to the Serbian society itself, to the parents who still, tens of years later, don’t know what really happened to their chil-dren
What is the situation of minority communities and hate speech in Serbia?
Regarding minorities and anti-discrimination legislation, the Council of Europe’s Anti-Racism Commission (ECRI) noted in its latest report, published in 2017, that the authorities have improved protection against hate crime through a new legislative provision making racist, homo- and transphobic motivation an aggravating factor.
The Criminal Code also protects persons and organisations promoting equality and the Law on the Prohibition of Discrimination explicitly prohibits hate speech. The Anti-Discrimination Strategy provides for the introduction of legislation on registered partnerships for same-sex couples and on changes of name and gender for transgender persons.
A considerable number of police officers and social welfare personnel have received training on LGBT issues. However, ECRI noted that the application of legislation against hate speech and violent hate crime was inefficient and that there was no decisive action against the activities of violent racist, homo- and transphobic groups.
The authorities should mobilise more energy on the implementation of the Roma Strategy, while a particular focus should also be placed on improving the housing conditions of Roma people and hiring a proportionate number of Roma and persons belonging to other minorities to the civil service.
We are cooperating in this area through our ROMACTED project, with the objective of capacity building and stimulating the empowerment of local Roma communities throughout Serbia. There should also be codes of conduct prohibiting hate speech in public institutions. The recording, investigating and punishing of hate speech and violent hate crime should be improved. The authorities should efficiently implement the Strategy for the Prosecution of War Crimes and acknowledge, publicly and unequivocally, the entirety of the results of the work of the International Criminal Tribunal for the former Yugoslavia (ICTY).
How would you assess the level of media freedom in Serbia?
“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 is taken from Article 10 of the European Convention on Human Rights, which was adopted in 1950.
The Council of Europe’s Commissioner for Human Rights has previously noted many concerns regarding the deteriorating situation for the work of journalists and the media, stating that “politicians are urged to unequivocally condemn all cases of violence targeting journalists who play such a crucial watchdog role in society.”
According to the Council of Europe’s Platform for the Safety of Journalists, from the 2015 launch of the platform until 2018, there were 20 alerts on Serbia, two of which were resolved, while 18 are still active. The majority of these alerts concern harassment and intimidation of journalists, attacks on the physical safety and integrity of journalists, as well as other forms of pressure on independent journalists. It is particularly worrying when these attacks – be they from State or non-state actors – remain unresolved or unpunished.
When it comes to decisions on the appointments and careers of judges, international standards strive to establish a balance between judicial accountability and independence. They do not ex-clude democratically legitimate bodies having any influence on the careers of judges
Why is it important to the Committee of Ministers of the Council of Europe that Serbia adopts a law on “missing babies” as soon as possible?
In the first place, the adoption of the law on “missing babies” in Serbia would be important to the Serbian society itself, to the parents who still, tens of years later, don’t know what really happened to their children. The judgment on the case of Zorica Jovanović v. Serbia about the failure to provide information on the fate of new-born babies who allegedly died in maternity wards in the 80s’ in Serbia, became final in September 2013. The judgment has not been yet executed.
The Committee of Ministers of the Council of Europe that supervises the execution of judgments of the European Court, in its latest decision in June 2018 deeply deplored that, despite its repeated calls, the authorities have failed to adopt the measures required by the Court’s judgment on Zorica Ivanovic’s case. I would like to recall that the European Court itself indicated that Serbia should adopt a special law introducing a mechanism capable of providing credible answers on the fate of “missing” babies and providing redress to their parents. Pursuant to Convention, Serbia has a legal obligation to comply with the Court’s judgments, including in the case concerning “missing babies”.
Against this backdrop, the Committee of Ministers called again on the authorities to take all necessary measures to introduce this mechanism as a matter of utmost priority.
The Committee of Ministers, as indicated in its latest Decision of June 2018, will resume examination of this case in December 2018 to take stock of the progress made and, and in case the draft law is not adopted, the Committee might decide to examine this case at each of the Committee’s Human Rights meetings until the required measures are taken. Full and timely implementation of judgments of the European Court of Human Rights should be seen as an important element of Serbia’s efforts to make progress on its European path.
Unfortunately, Zorica Ivanović was not alone in her tragedy. A dozen other applications on the same issue are pending at the European Court: five such applications have been communicated to the Government of Serbia; eight other similar cases are at a preliminary stage of proceedings.
What are the plans for the 70th anniversary of the Council of Europe? How will it be marked in Serbia?
Indeed, we are delighted to celebrate the 70th anniversary of the foundation of the Council of Europe on 5th May 1949 in London. I remain convinced that the pursuit of peace based on justice and international cooperation is more vital than ever to the preservation of human society and civilisation, not least if we look to the common challenges we are facing all over Europe. However, in current times it is not easy to uphold our values, which are the common heritage of the peoples of Europe.
Nevertheless, these values are the true source of individual freedom, political liberty and the rule of law; they are principles that form the basis of all genuine democracies. For 2019, we decided to stress togetherness as individuals and societies with the slogan: “Our Rights, Our Freedoms, Our Europe”. In times of division and hate speech, it is rights and freedoms that bind us together in Europe. With Serbia, we are planning an event later next year and there will also, hopefully, be a commemorative postage stamp, an essay writing competition for young people and the opportunity to name landmark places after the Council of Europe.