EU Rule of Law Promotion

Judiciary Reform in the Western Balkans

Marko Kmezic

• Publisher: Routledge
• Year: 2016
• Print ISBN:
  9781138361423
• eBook ISBN:
  9781317140160
• Topic: Law
• Subtopic: International Law
• Index: Law

Do EU institutions have an influence on the implementation of the rule of law in potential candidate countries and, if so, of what kind? During the compliance monitoring process related to the effective rule of law and democracy the EU Commission tests and criticizes the effectiveness of the judiciary and strengthens the rule of law in preparation for accession. In the Western Balkans this was a process fraught with difficulties.

Despite the fact that academic scholarship and democratic politics agree on rule of law as a legitimizing principle for the exercise of state authority, there is no uniform European standard for institution-building or monitoring activities by the EU in this area. With focus on the reform of the judiciary in five case study countries of Bosnia and Herzegovina, Kosovo, Macedonia, Montenegro, and Serbia, this empirical research investigates the EU's transformative power with regard to the effectiveness of rule of law and judicial sector reform in its infancy. It analyses the depth and limitations of EU rule of law promotion in the Western Balkans and presents policy recommendations intended to address the shortcomings in judiciary reform.

This book aims to fill the gap in the existing academic scholarship of EU politics, law and Western Balkans literature.

Part I

1 Introduction

Southeastern Europe in transition

The countries of Southeastern Europe (SEE) lag behind other European states in the process of consolidation of economy and democracy and accession to the European Union. While three countries joined the European Union (EU), Romania and Bulgaria in 2007 as laggards of the 2004 enlargement and Croatia in 2013, the remainder of the region remains excluded with no foreseeable accession date in sight. Furthermore, state dissolution and the legacy of violent conflict shaped the transformation in the former Yugoslavia, which included the need for a long period of reconstruction of the state and economy, and reconciliation between peoples. In addition to the dual political and economic transformation from communist rule and a planned economy to democracy and market liberalism, most countries of SEE, in particular the successor states of former Yugoslavia, are weak states with dysfunctional institutions, notwithstanding the considerable diversity among these states.¹ These multiple challenges are crucial to explaining the delay in the EU integration process in the Western Balkan countries (WBC).² The EU sought to account for these particularities with the Stabilisation and Association Process (SAP).

However, in spite of the fact that the SAP was launched already 15 years ago, the WBC are still far away from the full EU membership. After losing the momentum of change gained after the democratic revolution in Serbia and the second democratic revolution in Croatia in 2000, the current situation can best be described as the “consolidation of unconsolidated democracies.”³ The latest edition of the Nations in Transit report presents a record of backsliding and stagnation in all key governance indicators across all the countries of the region.⁴ While liberal democratic Western Balkan governments seem to identify with the EU, they often remain overshadowed by the high number of domestic formal and informal “gate keeper” elites that continue to control the state in an effort to preserve their private economic interests and their grip on political power.⁵ The reconciliation after the violent conflicts of the 1990s is still not fully achieved, while a climate of revenge, fear and hatred still drives decisions of the political elites and, more importantly, the attitudes of common people. Bilateral relationships, particularly between Serbia and Kosovo and Macedonia and Greece, remain overburdened by historical legacies, and threaten to export tension to the level of regional cooperation as well. While the dynamics of the EU integration seem to announce a new phase in regional relations, relapse into the doctrine of the ethnically pure state and ethnic extremism is all but impossible.

Moreover, Bosnia-Herzegovina and Kosovo—notwithstanding the latter’s declaration of independence in 2008—remain internationally administered territories.⁶ Macedonia managed to avoid a full-scale war and to reduce inter-ethnic tensions with the mostly successful implementation of the Ohrid Framework Agreement of 2001, but the political system is not fully consolidated,⁷ while the countries’ Euro-Atlantic integration is consistently vetoed by Greece due to the mutual name issue dispute. After the dissolution of the common state with Montenegro in 2006 and Kosovo’s declaration of independence in 2008, Serbia is currently in the hands of “reformed” Milošević allies who have turned pro-European. At the same time its political elites are searching for a way to escape the dilemmas over state- and nationhood issues. Having gained independence in 2006, Montenegro has nearly completed the state-building processes. However, the country’s newly achieved independence did not result in a swift resolution of key challenges, such as weak governance and widely perceived corruption.⁸ Albania did not take part in the violent ex-Yugoslav wars and therefore had an easier path towards democratic consolidation than the countries analyzed above, but it has nonetheless undergone a very slow democratic and economic transition hampered by the internal political polarization of the ruling elites, the dominant influence of informal centers of power, and high levels of corruption throughout all branches of government.⁹

Romania and Bulgaria did not have to cope with violent state dissolution like that seen by the former Socialist Federal Republic of Yugoslavia (SFRY) and, consequently, did not have to undergo a phase of reconstruction and reconciliation and experienced fewer challenges to democratic consolidation processes. Instead, these two countries were finally successful in their legal and institutional reform efforts and joined the European Union with the accession in 2007, which completed the EU’s fifth enlargement. However, despite the far-reaching reforms enacted in preparation for EU membership, Bulgaria and Romania still had some way to go in the adaptation of their legal systems to guarantee an effective system of rule of law.¹⁰ To ensure that these reform efforts continue beyond accession, the Commission has established a package of transitional measures within the Cooperation and Verification Mechanism to ensure the smooth integration of Bulgaria and Romania.¹¹ Hence, both countries are still subject to a specific post-accession monitoring system. Finally, Croatia managed to consolidate its democracy after the second democratic “revolution” in 2000, but was delayed multiple times in the accession process, first by insufficient cooperation with the International Criminal Tribunal for the former Yugoslavia (ICTY), and later due to an unresolved border dispute with Slovenia.¹² In July 2013, Croatia became the 28th member state of the EU as the second country from the former Yugoslavia to enter the EU, and the first country after Greece to join the Union in a single country enlargement. Croatia managed to avoid the post-accession monitoring instruments concerning the improvement of rule of law imposed by the EU on Bulgaria and Romania. Bearing in mind the experience from the 2007 enlargement, the EU took a more austere negotiating position with Croatia in closing Chapters 23 and 24 pertaining to “Judiciary and Fundamental Rights,” and “Justice, Freedom and Security,” respectively. While one could argue that Croatia escaped the post-accession monitoring because it was forced to do a better job than Bulgaria and Romania in implementation of an effective rule of law system, the fact is that the EU officials became aware of the “limited effects”¹³ of the Cooperation and Verification Mechanism, and therefore decided to rely more on “soft pressure” to ensure the effective implementation of rule of law in Croatia.

This shows that not only EU candidate countries, but even the EU member states¹⁴ did not manage to resolve all the problems with regard to a functioning system of rule of law, which places the rule of law implementation in SEE high on the agenda of future legal and political science research interest. What is particularly sticking, and what also presents the driving impetus for the research behind this book, is the fact that despite constantly growing EU efforts in promoting democracy and rule of law in SEE,¹⁵ the dynamics of international impact, and particularly the causal impact of international instruments on domestic outcomes, remains a highly under-theorized and under-researched area. More precisely, this study treats the experience of the EU’s transformative engagement in the candidate countries taking part in the SAP within the field of reform of the judiciary.

Framing the challenge

Strengthening of the rule of law and the accession to the EU have been fraught with difficulties in Southeastern Europe for over 20 years. In line with previous scholarship on “Europeanization,”¹⁶ this book treats this phenomenon as a politically driven process, i.e. as a way in which EU institutions, rules and policy-making processes impact the legal systems, institutional mechanisms and creation of collective cultural identity in non-EU member states. Hence, the research question of this book remains the same: Whether and what kind of influence the EU institutions have on the implementation of the rule of law in the Southeastern Europe.

Although there is no uniform EU standard regarding the rule of law, it can be observed that rule of law as a constitutional principle and institutional mechanisms in legal textbooks’ descriptions are different from practical requirements with regard to the conceptualization and operationalization of benchmarks for monitoring processes in the Stabilisation and Association Process. Namely, during the monitoring process of the (potential) candidate countries’ compliance with the Copenhagen conditionality criteria related to the effective rule of law and democracy principle, the EU Commission tests and criticizes various issues included in the Justice and Home Affairs (JHA) policies of the EU, stretching from asylum and border control to the fight against corruption and organized crime.

This book deliberately chooses not to deal with the effect of EU policies in this sector covered by Chapter 24, but focuses on the normative and empirical analysis of the effective functioning of the judiciary in five case study countries. The central focus of this study, then, is the reform of the judiciary in those five case study countries: Bosnia and Herzegovina, Kosovo, Macedonia, Montenegro, and Serbia.

More specifically, this study scrutinizes the institutional reform carried out in the judicial sector by means of content analysis of legal rules and administrative regulations adopted for this purpose, as well as their implementation. Furthermore, this book tests whether the EU Commission uses a double standard or whether a coherent framework of analysis is created and used in the monitoring process.

As previously has been observed with regard to the EU monitoring activities in the Eastern enlargement process,¹⁷ the performance of the judicial system remains difficult to measure mostly due to the lack of coherent European standards. For this reason this study borrows a comprehensive set of judicial independence, accountability, efficiency and effectiveness “benchmarks” already elaborated on behalf of EuropeAid by Joseph Marko et al.¹⁸ Namely political, economic and ethnic challenges to judicial independence stemming from the establishment of such new institutions as High Judicial Councils whose members are appointed by parliaments and/or the executive, the low level of salaries paid in the judiciary, or proportional ethnic representation (where applicable) even in the judiciary, which raises challenges for the notion of “fair trial” that have not been empirically studied so far. Secondly, independence must be balanced with accountability against the danger of a “gouvernement des juges.”¹⁹ Thirdly, independence and accountability are of no effect if judges and prosecutors are not efficient and effective. Hence, capacity-building in the judicial sector and the effectiveness of its institutional mechanisms are functions that have to be studied both from a normative and an empirical perspective.

The investigation of the state of the judiciary is based on an analysis of the institutional reforms thus far performed in the five case study countries. Particular focus is given to newly established institutions such as the High Judicial and Prosecutorial Council with the goal to assess whether they provide political independence to the judiciary. This task has been executed through an empirical study based on 52 semi-structured interviews with representatives of the judiciary, government employees and relevant domestic and international experts (legal scholars, NGO representatives, journalists, EU representatives), as well as a ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• List of figures and tables
• Preface and acknowledgements
• List of abbreviations
• Part I
• Part II
• Part III
• Bibliography
• Index