The rule of law, in its most basic form, is based on the principles that society is governed openly and fairly according to widely known and accepted rules; that no one is above the law, including
those in authority; and that justice is accessible to all (Bara and Bara, 2017, 24-25; MavrikosAdamou, 2014; Memeti, 2014). A country operates under “rule of law” when it has, among other
institutions and services, a legislature that enacts laws in accordance with the constitution and human rights; an independent judiciary; effective and accessible legal services; and a legal system guaranteeing equality before the law (Gome, 2017). Both the quality of laws (clear, general, stable, coherent and enforced laws) and quality of the judicial system (capable, independent, accountable and impartial) are important to the rule of law (Mendelski, 2018).
Rule of law reform is a complex, expensive, and challenging issue, due to the heterogeneity of means, goals, opinions, agendas, and priorities of diverse stakeholders (Mendelski, 2018). Practitioners and legal experts have differed in their views and understanding of how the rule of law can be established. International donors have also emphasised a wide range of issues to establish the rule of law, such as judicial capacity building (EU, USAID, and World Bank); respect for human rights and a fair trial (ECHR); countering corruption, judicial independence, impartiality and training (Council of Europe and EU); and law and order and minority rights (OSCE) (Mendelski, 2018). The vagueness of the concept of the rule of law can undermine the effectiveness of the rule of law reforms (Ilievski, 2014).
Establishing the rule of law remains a key challenge in the Western Balkans. Progress in the region, while different across countries, is slow (Mendelski, 2018; Milošević and Muk, 2016). The
rule of law criterion has emerged as one of the top priorities and key concerns in EU enlargement policies for the region (Elbasani and Šabić, 2017). The EU Commission’s new enlargement
strategy emphasises that “the rule of law must be strengthened significantly” (EC, 2018). Strengthening the rule of law is not only an institutional issue but also requires a societal transformation in the countries and incorporation of particular fundamental values into daily culture (Hoxhaj, 2018).
This report discusses the key challenges faced by countries in the Western Balkans in the area of rule of law and the experience of relevant reform efforts. Given the breadth of this topic, the
report is based on a review of the literature published during the past five years. They comprise primarily of academic literature, NGO reports, and EC and US government status reports. There
are very limited donor evaluations or discussions of particular projects and programming readily available. In addition, academic and NGO literature rarely refer to specific donor projects and
programmes, but rather discuss reforms more generally. A key commonality in academic and NGO literature is the critique that donors have not paid sufficient attention in their reform efforts
to issues of pervasive politicisation and historical legacies in the region that impinge on the current culture and environment. There has also been inadequate attention to the need for accountability. As such, reform progress can be constrained. In some instances, reforms may even produce negative unintended consequences, such as by pushing for strong, independent
judicial councils, when members are still politicised and subject to political influences.
The topics and challenges that receive the greatest focus in the literature are judicial independence and corruption. Other challenges that receive substantial attention are judicial efficiency; war crimes prosecution; media freedom and protection; minority protection; and asylum frameworks. These will be discussed first on a regional basis, based on literature that covers the region as a whole, followed by findings from country-specific literature.
Judicial independence: The judicial systems of the Western Balkans are adversely affected by the politicisation of the judiciary, undue influences and judicial corruption (Anastasi, 2018; Taleski et al., 2016). The establishment of an independent judiciary has been one of the key reform priorities in EU accession processes (Bobek and Kosar, 2014). An extensive study on monitoring and evaluating the rule of law in the region finds, however, that there is no significant progress regarding independence (Milošević and Muk, 2016). Institutional reform has often been limited to promoting judicial councils, which are typically independent intermediary bodies, designed to insulate the functions of appointment, promotion and discipline of judges and other judicial staff from partisan political processes (Takacs, 2018; Bobek and Kosar, 2014). Judicial academies, heavily promoted by the EU, have also been established to improve the quality of judicial education and judicial effectiveness and efficiency (Ilievski, 2014). The introduction of “strong” judicial councils and academies, however, without adequate internal reform (e.g. transformation of culture, political maturity, clarity on the separation of powers) has led to the emergence of new channels of political interference, resulting in the persistence of dependent judges. There has thus been continued political influence in the operation of the judiciary, particularly in the case of appointments, promotions and case allocation (Takacs, 2018; Imeri et al., 2018; Fagan, 2016; Bobek and Kosar, 2014). Attention to judicial accountability, which acts as an effective “check and balances” to judicial independence, is essential but has received much less attention until very recently (Anastasi, 2018; Taleski et al., 2016; Bobek and Kosar, 2014). In its absence, granting judges from the socialist period too much independence can enable threats from internal and external actors (Preshova et al., 2017; Fagan, 2016).
Judicial efficiency: Many years of neglect and underinvestment have undermined judicial efficiency and access to justice in the Western Balkans (Hoxhaj, 2018). In most countries, there are long court delays and a high backlog of cases (Hoxhaj, 2018; Imeri and Ivanovska, 2016). Digital case management systems, including audio-visual recording and transcription of court proceedings, could make courts more transparent and easier to access. They can also reduce corruption and increasing public confidence in the judicial process (Hoxhaj, 2018).
Corruption and organised crime: Systemic corruption and organised crime are persistent problems in all Western Balkan countries, despite successes in strengthening relevant legal frameworks and setting up anti-corruption institutions (Čeperković and Gaub, 2018; EPSC, 2018; Sanfey and Milatovic, 2018; Ciero, 2016). Curbing overarching politicization in the region is essential to countering corruption effectively, alongside technical reforms (Milošević and Muk, 2016). While corruption undermines the functioning of the judiciary, the lack of independence of the judiciary also undermines adequate processing of corruption cases (Imeri et al., 2018; Ungar, 2017; Imeri and Ivanovska, 2016). There is a consistently poor track record of prosecuting and punishing corruption and organised crime, particularly among high-level officials (Imeri et al., 2018; McDevitt, 2016). This is due in large part to political interference, inadequate institutional capacities, and lack of institutional cooperation (McDevitt, 2016; Imeri and Ivanovska, 2016).
War crimes prosecution: Past and ongoing approaches to the prosecution of war criminals in the region have been piecemeal, failing to dismantle powerful structures of impunity (Ungar,
2017). With the termination of the International Criminal Tribunal for the Former Yugoslavia (ICTY), it is now solely up to the states themselves to continue with prosecutions. Apart from
Bosnia and Herzegovina (BiH), where there is some limited progress with local prosecutions, other countries are falling short (Ungar, 2017). Factors behind failures ineffective prosecution
include lack of political will; ethnoreligious tensions; politicised media; and inadequate resources and capacity. Further, Ungar (2017) emphasises that such prosecutions have clear limitations in terms of dealing specifically with individual criminal responsibility, rather than with changes in ideologies. The EU accession process provides an opportunity to reframe discussions around justice, to re-evaluate the meaning of reform and how it can be more effective in fighting impunity.
Media freedom and protection: Given the absence of strong horizontal accountability in the region, it is even more critical that media has the capacity and freedom to hold political actors to
account (McDevitt, 2016). Media freedom has deteriorated in recent years, however, characterised by political interference; corrupt ties between officials and media owners; tight government control; non-transparent public funding of media and financing of pro-government media; and intimidation of or violence against journalists. This results in (self-) censorship (Imera et al., 2018; Imeri and Ivanovska, 2016; McDevitt, 2016; Milošević and Muk, 2016).
Minority protection: While legislative frameworks, strategies and action plans for protection against discrimination have been adopted across the region, implementation has been poor. This
is due to lack of institutional capacities; poor understanding of the issues and how the law is supposed to be implemented; and absence of a political will (Imeri et al., 2018; Imeri and Ivanovska, 2016). There have been persistent shortcomings, particularly with regard to discrimination against the Roma community and hostility towards the LGBTI community. Data on discrimination cases registered with official institutions is scarce and non-systematized, which hinders a quantitative overview of the situation throughout the region (Imeri et al., 2018).
Asylum framework: Thousands of people have been trapped in Western Balkan countries that lack the capacity to provide functioning asylum systems (Imeri and Ivanovska, 2016). The human
resources and capacities of reception centres have yet to be increased (Imeri et al., 2018). Given the complex nature of the necessary reforms, however, establishing an effective asylum and
migration framework is recognised as a long term process (Imeri and Ivanovska, 2016).
Factors affecting the rule of law reforms
Historical legacies, such as the legacies of communist judicial culture and civil war, play a role in a country’s degree of compliance with judicial reform and entrenchment of the rule of law (Mendelski, 2018; Čavalić and Gajić, 2017; Preshova et al., 2017). Western Balkan countries historically did not have much experience with political entities that provided sufficient rule of law (Čavalić and Gajić, 2017). Thus, the “European model” is based on assumptions and preconditions relating to a certain legal and judicial culture and mentality that is not necessarily present, likely limiting the success of reforms (Preshova et al. 2017). A further key challenge in the Western Balkans is the failure of political elites to commit to the implementation of rule of law standards (Imeri et al., 2018; Milošević and Muk, 2016). The politicisation and instrumentalisation of new laws, reforms and public institutions are critical challenges in the region (Mendelski, 2018; Mendelski, 2016). In addition, Mendelski (2016) finds evidence that many of the EU’s reformist change agents from the Western Balkans can also be obstructionist. Curbing overarching politicisation in the region is thus a key precondition to the establishment of the rule of law (Milošević and Muk, 2016) and for greater success in internationally-led campaigns (Elbasani, 2018a). However, progress has generally been more technical rather than directly focusing on politically sensitive issues (Elbasani, 2018a). Scholars advocate for a “fundamentals first” approach, with better attention to impartiality, such as independence and separation of power (Elbasani, 2018a; Šabić, 2018; Milošević and Muk, 2016). Similarly, a key identified problem with the EU’s rule of law reforms is its quantitative approach, which follows a “the more the better” mindset in the assessment of the rule of law, rather than focusing on the qualitative reform processes (Mendelski, 2016). Quantitative and technical approaches can not only limit the impact on the ground but also create perverse incentives and superficial outcomes. Mendelski (2018; 2016; 2014) finds that the EU-driven rule of law reforms often contribute substantially to improvements in a judicial capacity and substantive legality, but with adverse consequences on judicial impartiality.
Insufficient knowledge & evidence
Despite years of research, it remains unclear whether and under which conditions rule of law promotion and judicial reform (as advanced by the EU and international donors) establishes or
undermines the rule of law (Mendelski, 2018). Most literature on the rule of law in Central and Eastern Europe proposes arguments and findings which remain restrictive and incomplete. In
order to broaden the theoretical and methodological lens through which external rule of law promotion and reform can be analysed, more comprehensive and integrated explanations combining different methodologies, approaches, and literature is required (Mendelski, 2018).
Further, Mendelski (2018) argues that the EU lacks a well-elaborated methodology, sufficient to allow a consistent and objective evaluation of the rule of law. Most relevant studies are
qualitative in nature and restricted to findings from single cases or geographically restricted regions, thus offering restrictive, non-generalisable insights about rule of law development in the
region. There is a need for more systematic comparative studies with a larger number of cases that would help to determine why some countries are able to establish the rule of law and others not
(Mendelski, 2018). At the same time, Anastasi (2018) states that while a comparative analysis of rule of law reforms is an effective way to make conclusions and suggestions, transferring
measures from one country to another, without sufficient analysis, can be detrimental.
In addition, since the rule of law can mean different things to different scholars and practitioners, it can also be measured through different methods. This can contribute to different evaluations of
the rule of law in a particular country (Mendelski, 2018). Assessments of the rule of law are often conducted narrowly and unsystematically, focusing on the quality of the judiciary, such as
empowerment of the judiciary. This has resulted in some cases in the existence of independent but unaccountable judiciaries, judicial councils and constitutional courts (Mendelski, 2018).