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RAAUZYUW RUEHPOD0206 1641446-UUUU--RHMCSUU.
ZNR UUUUU ZZH
R 131446Z JUN 07
FM AMEMBASSY PODGORICA
TO RUEHC/SECSTATE WASHDC
INFO EUROPEAN POLITICAL COLLECTIVE
RUFOADA/JAC MOLESWORTH RAF MOLESWORTH UK
RUEHC/USAID WASHDC
RUEHPOD/AMEMBASSY PODGORICA
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UNCLAS SECTION 01 OF 02 PODGORICA 000206 
 
SIPDIS 
 
SENSITIVE 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: PGOV PHUM KJUS MW
SUBJECT: INTERNATIONALS COMMENT ON DRAFT MONTENEGRO'S CONSTITUTION 
(C-RE7-00522) 
 
REF: A. A) PODGORICA 032 
 
     ¶B. B) PODGORICA 100 
 
PODGORICA 00000206  001.3 OF 002 
 
 
SENSITIVE BUT UNCLASSIFIED - PLEASE HANDLE ACCORDINGLY 
 
 
 
¶1. (SBU) SUMMARY: THE VENICE COMMISSION (VC), OF THE COUNCIL OF 
EUROPE (COE), AND THE OSCE OFFICE FOR DEMOCRATIC INSTITUTIONS 
AND HUMAN RIGHTS (ODIHR), HAVE COMMENTED ON MONTENEGROS DRAFT 
CONSTITUTION. BOTH CITE SHORTCOMINGS IN THE PROTECTION OF HUMAN 
RIGHTS, INSUFFICIENT GUARANTEES FOR THE INDEPENDENCE OF THE 
JUDICIARY, AND A LACK OF TECHNICAL CLARITY IN THE DRAFT. A 
PROLONGED "PUBLIC DISCUSSION" OF THE DRAFT HAS CONCLUDED, AND 
THE PARLIAMENT IS EXPECTED TO COLLATE THE COLLECTIVE PUBLIC AND 
INTERNATIONAL COMMENTS.  INDICATIONS ARE GROWING THAT IT IS 
UNLIKELY THAT THE DRAFT WILL BE READY FOR A PARLIAMENTARY VOTE 
BEFORE THE FALL. UNRESOLVED TENSIONS IN THE RULING COALITION 
(REF B) ARE ALSO IMPAIRING MOVEMENT ON THE CONSTITUTION. END 
SUMMARY. 
 
 
 
VENICE COMMISSION CRITICAL OF CONSTITUTION 
 
------------------------------------------ 
 
 
 
¶2. (U) ON JUNE 5, THE COUNCIL OF EUROPE'S VENICE COMMISSION (COE 
- VC) ADOPTED ITS "INTERIM OPINION ON THE DRAFT CONSTITUTION OF 
MONTENEGRO" (FULL TEXT OF OPINION ON THE COE WEBSITE, 
WWW.VENICE.COE.INT).  THE VC SUCCINTLY CONCLUDED THAT: "THE 
DRAFT CONSTITUTION ... DOES NOT RAISE ISSUES OF COMPATIBILITY 
WITH COUNCIL OF EUROPE STANDARDS, WITH THE EXCEPTION OF (1) THE 
PROVISIONS ON THE APPOINTMENT, CAREER AND DISMISSAL OF JUDGES 
AND ON THE FUNCTIONS AND COMPOSITION OF THE JUDICIAL COUNCIL AND 
(2) THE NUMEROUS DEFECTS IN THE STRUCTURE AND CONTENT OF PART 2, 
HUMAN RIGHTS AND FREEDOMS." ADDITIONALLY, THE VC STATED THAT 
"THE DRAFT CONSTITUTION REQUIRES SIGNIFICANT TECHNICAL 
AMENDMENTS." THE VC ALSO ADVISED "THE ADOPTION OF THE NEW 
CONSTITUTION SHOULD NOT BE RUSHED, AND SHOULD ONLY BE ENVISAGED 
ONCE THE TWO ISSUES STATED ABOVE ARE SETTLED IN A MANNER 
COMPATIBLE WITH THE EUROPEAN STANDARDS, AND ONCE THE TEXT 
REACHES A GOOD LEVEL OF DRAFTING TECHNIQUE." 
 
 
 
JUDICIARY 
 
--------- 
 
 
 
¶3. (U) THE VC NOTED THAT THE CURRENT DRAFT CONSTITUTION STILL 
PLACES TOO MUCH POWER IN THE PARLIAMENT TO SELECT AND DISMISS 
JUDGES. THE VC RECOMMENDS THAT "JUDGES SHOULD BE APPOINTED BY 
THE HEAD OF STATE UPON THE PROPOSAL OF THE JUDICIAL COUNCIL OR 
DIRECTLY BY THE JUDICIAL COUNCIL." THE COMMISSION FURTHER 
OBSERVES "ELECTION BY PARLIAMENT (MOREOVER WITH NO QUALIFIED 
MAJORITY), ALBEIT UPON THE PROPOSAL OF THE JUDICIAL COUNCIL, IS 
A POLITICAL ACT WHICH IS INAPPROPRIATE TO ENSURE THE 
INDEPENDENCE OF THE JUDICIARY, AND DOES NOT COMPLY WITH EUROPEAN 
STANDARDS.  DISMISSAL OF JUDGES BY PARLIAMENT, WHICH IS 
CURRENTLY FORESEEN IN ARTICLE 129, IS EVEN MORE PROBLEMATIC." 
 
 
 
¶4. (SBU) THE VC OBJECTED TO THE METHOD BY WHICH THE DRAFT 
CONSTITUTION PROPOSES TO SELECT THE JUDICIAL COUNCIL, WHOSE 
MEMBERS (HALF FROM THE SITTING JUDICIARY) WOULD BE ELECTED AND 
DISMISSED BY PARLIAMENT. POST NOTES THAT AT BEST, THE PROPOSAL 
ONLY PUTS AT A SLIGHT REMOVE PARLIAMENT'S ABILITY TO EXERT UNDUE 
POLITICAL INFLUENCE ON THE SELECTION OF JUDGES.  MOREOVER, THE 
CURRENTLY SEATED JUDGES ARE PART OF THE PROBLEM, AND WOULD 
LIKELY USE THE SAME CRITERIA -- CONNECTIONS AND NOT NECESSARILY 
COMPETENCE -- THAT PUT THEM ON THE BENCH. 
 
 
 
HUMAN RIGHTS 
 
------------ 
 
 
 
¶5. (U) THE VC STATED THAT "THE DIFFERENCES BETWEEN THE CURRENT 
DRAFT CONSTITUTION AND THE ECHR (EUROPEAN CONVENTION ON HUMAN 
RIGHTS) ARE NOT MERELY TEXTUAL. CERTAIN FUNDAMENTAL GUARANTEES 
HAVE BEEN OMITTED, IN PART OR TOTALLY. IT IS RECALLED THAT THE 
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PODGORICA 00000206  002.3 OF 002 
 
 
MONTENEGRIN AUTHORITIES HAVE COMMITTED THEMSELVES TO PROVIDING 
IN THE NEW CONSTITUTION AT LEAST THE SAME LEVEL OF HUMAN RIGHTS 
PROTECTION WHICH WAS GUARANTEED BY THE 2002 CHARTER OF HUMAN 
RIGHTS, WHICH THE VENICE COMMISSION HAD FOUND TO PROVIDE FOR AN 
EXCELLENT LEVEL OF HUMAN AND MINORITY RIGHTS PROTECTION." 
 
 
 
¶6. (U) THE VC NOTES THAT SOME RIGHTS, SUCH AS ASPECTS OF FREEDOM 
OF RELIGION OR THE RIGHT TO A FAIR TRIAL, ARE NOT COMPLETELY 
ADDRESSED, WITH IMPORTANT ELEMENTS NOT MENTIONED (E.G., FREEDOM 
OF ASSEMBLY IN CONNECTION WITH RELIGIOUS WORSHIP, OR THE RIGHT 
TO AN INTERPRETER IN A CRIMINAL TRIAL). SOME RIGHTS ARE NOT 
MENTIONED AT ALL, INCLUDING: AN ABSOLUTE PROHIBITION OF TORTURE 
AND INHUMAN AND DEGRADING TREATMENT OR PUNISHMENT; AN ABSOLUTE 
PROHIBITION OF SLAVERY AND FORCED LABOR; AND THE RIGHT TO FREE 
ACCESS TO INFORMATION HELD BY PUBLIC AUTHORITIES. CONVERSELY, 
THE DRAFT CONSTITUTION IMPERMISSIBLY RESTRICTS OTHER RIGHTS, 
SUCH AS THE BLANKET PROHIBITION ON POLITICAL ASSOCIATION IN 
PUBLIC SERVICES, OR THE SIMILAR BAN ON POLITICAL ASSOCIATION AND 
ACTIONS BY FOREIGN NATIONALS (EVEN LONG-TERM RESIDENTS OF 
MONTENEGRO). 
 
 
 
OSCE/ODIHR QUIETLY CONCURS WITH VC 
 
---------------------------------- 
 
 
 
¶7. (SBU) THE OSCE OFFICE FOR DEMOCRATIC INSTITUTIONS AND HUMAN 
RIGHTS (ODIHR) HAS CHOSEN TO NOT MAKE ITS COMMENTS ON THE DRAFT 
CONSTITUTION PUBLIC; POST HAS HOWEVER OBTAINED A COPY OF THE 
ODIHR REPORT.  (ODIHR HAS PUBLISHED AN ENGLISH TRANSLATION OF 
THE DRAFT CONSTITUTION AT 
HTTP://WWW.OSCE.ORG/DOCUMENTS/MNT/2007/04/241 70_EN.PDF, 
HOWEVER.)  THE ODIHR REPORT GENERALLY TRACKS THAT FROM THE VC; 
WHILE IT GOES INTO MORE DEPTH IN SOME LIMITED AREAS (GENERALLY 
IN THE AREA OF HUMAN RIGHTS), IT DOES NOT RAISE ANY ADDITIONAL 
AREAS OF CONCERN. 
 
 
 
PUBLIC DISCUSSION CONCLUDES AFTER EXTENSION 
 
------------------------------------------- 
 
 
 
¶8. (SBU) THE PUBLIC DISCUSSION OF THE DRAFT CONSTITUTION 
CONCLUDED ON MAY 28, AFTER A 24 DAY EXTENSION OF A 30 DAY PERIOD 
FOR COMMENTS.  MONTENEGRIN LAW SAYS THAT THE CONSTITUTIONAL 
BOARD IS RESPONSIBLE TO CONSIDER THE PROPOSALS, COMMENTS AND 
SUGGESTIONS, TAKE THE STAND ABOUT THEM, AND FORWARD THE 
(REVISED) DRAFT CONSTITUTION TO THE PARLIAMENT WITHIN 15 DAYS OF 
THE CLOSURE OF THE PUBLIC DISCUSSION; THAT JUNE 13 DEADLINE WILL 
CLEARLY BE MISSED. BEHIND THE DELAY IS THREE FACTORS: 1) MANY 
NEEDED CORRECTIONS ARE TECHNICALLY COMPLEX; 2) NUMEROUS ARTICLES 
REMAIN POLITICALLY CONTENTIOUS; AND 3) THE RULING COALITION 
ITSELF IS FRACTURED OVER NON-CONSTITUTIONAL ISSUES (REF B), AND 
HAS NOT FULLY ENGAGED THE OPPOSITION ON THE CONSTITUTION. 
 
 
 
¶9. (SBU) THE ROLE OF THE JUDICIARY IS THE ONLY POLITICALLY 
CONTENTIOUS ISSUE ADDRESSED BY THE VC AND ODIHR. OTHER "ETHNIC 
HERITAGE" ISSUES SUCH AS THE STATUS OF THE ORTHODOX CHURCH(ES), 
WHAT TO CALL THE PREDOMINANT LANGUAGE IN MONTENEGRO, AND 
NATIONAL SYMBOLS REMAIN UNRESOLVED AS WELL. THESE ISSUES ARE 
LARGELY A SPLIT BETWEEN THOSE WHO SEE, AND WISH TO STRENGTHEN, A 
CORE "MONTENEGRIN" IDENTITY, AND THOSE WHO SEE THEIR IDENTITY AS 
"SERBIAN" IN NATURE. 
 
 
 
¶10. (SBU) THE RIFT IN THE RULING COALITION, ONLY SOMEWHAT 
PATCHED BY THE GOM ACTION ON JUNE 12 (SEPTEL), HAS IMPAIRED 
ALREADY WEAK OUTREACH EFFORTS TO CENTRIST PARTIES IN THE 
OPPOSITION. OPPOSITION VOTES WILL BE NEEDED IF THE GOM WISHES TO 
ADOPT THE CONSTITUTION WITHOUT A PUBLIC REFERENDUM.  THE GOM HAS 
41 VOTES IN THE 81 SEAT PARLIAMENT; THE CONSTITUTION MUST BE 
ADOPTED BY A 2/3 VOTE (54 VOTES) TO AVOID A REFERENDUM. 
BARNES 
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