Bridging the gap: the Serbian struggle for good governance

Full Terms & Conditions of access and use can be found at http://www.tandfonline.com/action/journalInformation?journalCode=cdeb20 Download by: [b-on: Biblioteca do conhecimento online UP] Date: 29 August 2016, At: 00:37 Journal of Contemporary Central and Eastern Europe ISSN: 0965-156X (Print) 1469-3712 (Online) Journal homepage: http://www.tandfonline.com/loi/cdeb20 Bridging the gap: the Serbian struggle for good governance Teresa Cierco To cite this article: Teresa Cierco (2016): Bridging the gap: the Serbian struggle for good governance, Journal of Contemporary Central and Eastern Europe To link to this article: http://dx.doi.org/10.1080/0965156X.2016.1219159 Published online: 17 Aug 2016. Submit your article to this journal Article views: 7 View related articles View Crossmark data Journal of Contemporary Central and eastern europe, 2016 http://dx.doi.org/10.1080/0965156X.2016.1219159 Bridging the gap: the Serbian struggle for good governance Teresa Cierco faculty of arts and Humanities, department of History, political and International studies, university of porto, porto, portugal ABSRACT This article explores the role of the European Union (EU) in the implementation and promotion of good governance principles in Serbia. It is clear that the EU demands on democratisation in the Western Balkan region are crucial in achieving the respect for good governance principles. Even though the membership perspective might be a promising instrument to promote good governance in external countries, the main causal mechanisms have to be identified in order to provide facts for this assumed causality. Conditionality serves in this context both as a EU promising tool to promote good governance and as a theoretical framework to explain causalities between the EU membership perspective and the implementation of good governance principles in Serbia. However, progress in the area can hardly respond to the integration that Serbia aspires to in its relation with the EU. Looking to the European Commission’s latest report on the country’s progress, there are several internal constraints to the implementation of good governance principles, such as corruption and organized crime. The article aims to uncover Serbia’s progress towards good governance principles. The main question is to find out if conditionality is working in this case, and if not, what are the main reasons why not. In practice good governance involves promoting the rule of law, tolerance of minority and opposition groups, transparent political processes, an independent judiciary, an impartial police force, a military that is strictly subject to civilian control. A free press and vibrant civil society institutions, as well as meaningful elections. Above all, good governance means respect for human rights. Kofi Annan, Preventing War and Disaster: 1999 Annual Report on the Work of the Organization Introduction The principles of good governance, namely transparency, participation and accountability, are closely associated with the way public institutions manage their resources and provide their services efficiently, free of abuse or discrimination. Poverty and corruption are often rooted in the malfunction of governments in complying with sound public affairs management criteria (Hofer 2011). Good governance is also about citizens having the possibility to hold decision-makers accountable for their actions and enhancing citizens’ participation in public and political life. © 2016 Informa uK limited, trading as taylor & francis Group KEYWORDS Good governance; corruption; organized crime; serbia; european union CONTACT teresa Cierco tcierc[email protected].pt 2 T. CIErCo This article explores the role of the European Union (EU) in the implementation and promotion of good governance principles in Serbia. It is clear that EU demands on democratization in the Western Balkan countries are crucial in achieving respect for good governance principles (Panebianco and rossi 2004, 20). The EU uses the same set of foreign policy instruments to promote good governance across its external relations: political dialogue, conditionality and assistance. As the democratization of non-member states is both a normative and strategic aim of the EU, good governance is a main element of its foreign policy. It is reflected in its relations with third countries in general, and in the enlargement policy, in particular. Even though the membership perspective might be a promising instrument to promote good governance, the main causal mechanisms have to be identified in order to provide facts for this assumed causality. Conditionality serves in this context both as an EU promising tool to promote good governance and as a theoretical framework to explain causalities between the EU membership perspective and the implementation of good governance principles in Serbia. However, progress in this area can hardly respond to the integration that Serbia aspires to in its relation with the EU. Looking at the European Commission’s latest report on the country’s progress, there are several internal constraints to the implementation of good governance principles, such as corruption, lack of independence, transparency and accountability in key institutions and organized crime. This article aims to uncover Serbia’s progress towards good governance principles. The main question is to find out if conditionality is working in this case, and if not, what are the main reasons why not. The article is divided into three parts. In the first, we present a brief conceptualization of good governance and try to assess under which conditions conditionality is a successful strategy to promote good governance principles. In the second part, we argue that conditionality strategy has some limitations for this purpose. Looking to basic literature and to some EU official reports, there is still a huge gap between how conditionality works at the legal and societal levels. In the third part, we analyse Serbia’s path towards the EU and the results of the conditionality strategy regarding respect for and implementation of good governance principles. We then conclude that in Serbia good governance principles are difficult to achieve due to two complex problems: corruption and organized crime. In this part, we use reports from United Nations organizations and non-governmental organizations such as Transparency International, and interviews that were carried out with some representatives of non-governmental organizations in Belgrade in March 2014. The importance of good governance in transition countries Good governance has been considered an important factor in the transition processes that the Western Balkan countries embarked on since the beginning of the twenty first century.1 The main objective is to join the EU. Both the research community and the policy-makers dealing with political and socio-economic changes in the region normally use the “good governance” concept to analyse the evolution of the democratization process in this group of countries. This is especially due to the Europeanization process and the generally high level of international involvement in the region (rrPP 2013). Good governance is essential to democratic consolidation and economic development since it promotes trust in government (rrPP 2013). This concept and its meaning have been JoUrNAL of CoNTEMPorAry CENTrAL ANd EASTErN EUroPE 3 strongly promoted and supported by several international organizations such as the World Bank2 or the organisation for Security and Cooperation in Europe, and in the last decades (IfAd 1999), by the EU, within the enlargement process, in a first moment regarding central and eastern Europe and since 2000, in the Western Balkan region. The EU’s enlargement policy has been perhaps the most powerful tool in promoting good governance in its neighbourhood (Brozel 2010, 9). Accession to the EU requires acceptance of European law (the “acquis”), compliance with the “Copenhagen criteria,” ensuring “stable institutions that guarantee democracy, the rule of law, human rights” (European Council 1993), and the participation of citizens in decision-making processes, a fight against corruption and transparency of state affairs (rrPP 2013). Although this group of countries, with the perspective of EU accession, has already adopted some important and difficult reforms, it is still characterized by high levels of bureau - cracy, corruption, informal practices and lack of transparency and accountability of public institutions. The persistent authoritarian and nationalistic values and norms within the societies in question are considered a heavyweight that these countries have to carry in their road towards the EU (dzihic 2012). There is no single and exhaustive definition of “good governance,” nor is there a delimitation of its scope. The term is used with great flexibility; this is an advantage, but also a source of some difficulty at the operational level. According to the United Nations Human rights: office of the High Commissioner: depending on the context and the overriding objective sought, good governance has been said at various times to encompass: full respect of human rights, the rule of law, effective participation, multi-actor partnerships, political pluralism, transparent and accountable processes and institutions, an efficient and effective public sector, legitimacy, access to knowledge, information and education, political empowerment of people, equity, sustainability, and attitudes and values that foster responsibility, solidarity and tolerance. (UNHr 2012) We can thus affirm that good governance is the process whereby public institutions conduct public affairs, manage public resources and guarantee the realization of human rights in a manner essentially free of abuse and corruption, and with due regard for the rule of law. In 2012, the Enlargement strategy of the European Commission identified “good governance, the rule of law, administrative capacity, unemployment, economic reform and social inclusion” as the major challenges for the Western Balkans (European Commission 2012). Moreover, the annual reports of the European Commission, which evaluated the progress of each country regarding the political and economic criteria for accession, emphasize the respect for good governance principles as essential in getting EU support. The concept of “good governance” was introduced by the EU in 2001 with the document “Governance in the European Union: A White Paper” (European Commission 2001). In this text, the EU articulated five basic principles of good governance: openness, participation, accountability, effectiveness and coherence (European Commission 2001, 10), each of them being essential for the establishment of democratic governance. In fact, all these principles provide the foundation for democracy and the rule of law, and in practice, can be translated into certain tangible things, such as: free, fair and frequent elections; a representative legislature that makes laws and provides oversight; and an independent judiciary that interprets laws (Cheema and Maguire 2002, 8). They also translate into a guarantee of human rights and the rule of law, and transparent and accountable institutions (Cheema and Maguire 2002). Good governance also decentralizes authority and resources to local governments 4 T. CIErCo to give citizens a greater role in governance (Cheema and Maguire 2002). finally, good governance ensures that civil society plays an active role in setting priorities and making known the needs of the most vulnerable people in society (United Nations 2014). The principles of good governance are effective in post-conflict societies as a neutral and practical set of measures meant to advance the rebuilding of nations and to reset a fundamental link between civil society and state institutions (Caluser and Salagean 2007, 14). Good governance is an important means to achieve larger ends, namely equitable and sustainable development, security and conflict prevention. But we can consider it also as a valuable objective for EU policy as an end in itself, where larger and more representative proportions of citizens benefit from participating in public affairs, institutions are more transparent and accountable, and the rights of individuals are protected, respected and fulfilled in ways that are consistent with international human rights standards (Landman and Larizza 2010, 3). After the white paper, many other EU documents mentioned the importance of good governance. In 2006, the EU identified good governance, democracy and respect for human rights as vital to the process of “sustainable development and as a major objective of EU development policy” (European Commission 2006, 3). The document entitled “Governance in the European Consensus on development: Towards a harmonised approach within the European Union,” asserts that: in an increasingly globalised and interdependent world, peace and security hang to a great extent on the political will and ability of governments and institutions to pursue policies geared to the rule of law, the protection of human rights, democratic governance, eradicating poverty, promoting sustainable development and reducing the inequalities that lie at the root of the main challenges facing the world. (European Commission 2006, 3) According to the European Basic Treaties, the Union’s primary strategic goal should be to maintain its values, support and consolidate democracy, the rule of law, human rights and international law principles through external actions. The EU should practice these principles in efforts to promote global governance policies and realise its goals. (Ling 2013, 92) This was done in 2000, when the concept of good governance (based on human rights, democracy and rule of law) was included in the Cotonou Agreement, “becoming a fundamental element of the relations between the EU and African, Caribbean and Pacific countries and subject to regular monitoring that determined the amount and means of foreign aid administered to these regions” (Ling 2013). Through trade and foreign aid, the EU seeks to export its values by associating trade and development with political issues. In addition, in 2004, when the EU conceived the European Neighbourhood Policy, it expressed the principle that “the privileged relationship with neighbours will build on mutual commitment to common values. The level of ambition of the EU’s relationship with its neighbours will take into account the extent to which these values are effectively shared” (European Commission 2004, 3). And, concerning the Western Balkans, this was done through the Stabilisation and Association Process, which was launched in June 1999, and was strengthened at the Thessaloniki Summit in June 2003. In its external relations, the EU embraces democracy promotion and good governance as a crucial feature of its role in the world. This involves “the rights of citizens on the road to sustainable development” and includes: JoUrNAL of CoNTEMPorAry CENTrAL ANd EASTErN EUroPE 5 respect of human rights and fundamental freedoms … support for democratisation processes … respect for the rule of law … access for all to an independent justice system … and a government that governs transparently and is accountable to the relevant institutions and to the electorate. (European Commission 2006, 5) The EU’s focus on the performance of public institutions and issues related to the access to justice and the control of government institutions is also confirmed by the Instrument for Pre-Accession Assistance (IPA) (Council of the European Union 2006). This EU financial instrument aims to strengthen institutional capacity, cross-border cooperation, economic and social development for countries engaged in the accession process to the EU (Council of the European Union 2006). In the case of Serbia, the country benefits from two EU main supports which constitute attractive incentives for its path: politically, the High representative appointed a Personal representative based in Belgrade to work closely with the Serbian Government on all political and rule of law issues; financially, there is Serbia’s national IPA. In 23 december 2013, the European Commission adopted the 2013 national programme for Serbia under the IPA. “The €178.7 million programme will help Serbia to implement reforms in key areas such as rule of law, public administration, social inclusion, private sector development, transport, environment, energy and agriculture” (European Commission 2013c). These reforms are vital for the country’s European integration process, helping Serbia “in the area of rule of law by supporting the implementation of national strategies for the fight against corruption, improving the prison system and strengthening the independence and competence of the judicial system” (European Commission 2013c). EU funds have already helped the country to adopt important steps regarding good governance, such as the National judicial reform strategy (2006), the reform of the correctional system in Serbia (2005), the National anti-corruption strategy (2005) and its implementation plan from one year later, the National strategy for the fight against organised crime (2009), and the related Integrated Border Management Strategy (2006) and the Customs risk Analysis and risk Management Strategy (2008). Conditionality Conditionality is one strong Europeanization instrument that gives the EU significant influence in transferring to the applicant countries its principles, norms and rules, as well as in determining their institutional and administrative structures. It also associates the gradual development of the EU’s relations with the particular countries to the accomplishment of political and economic conditions by the latter. As Schimmelfennig (2005, 127) stated, political conditionality is “a strategy of reinforcement used by international organisations and other international actors to bring about change and stabilise political change at the state level.” In the same context, Smith (1998) presents a wider, more EU-relevant, definition of political conditionality. According to Smith “political conditionality entails the linking, by a state or international organisation, of perceived benefits to another state (such as aid), to the fulfilment of conditions relating to the protection of human rights and the advancement of democratic principles.” And, as Schimmelfennig and Sedelmeier (2004) identify it, the strong emphasis on conditionality rendered accession into a predominantly technical and administrative process of rule-transfer. Since the end of the cold war, the EU has been applying political conditionality and during this time, a qualitative adjustment has been made. Conditionality is no longer based on promises, but rather premised on assessments of performance by the candidate countries. 6 T. CIErCo This means “compliance is induced not so much by incentives and coercion as through education and teaching by the international institutions and learning at the national level” (Checkel 2000, 5). As an EU foreign policy strategy for promoting political and economic reforms in third countries, political conditionality can be seen as positive or negative. Positive conditionality corresponds to the promise of a benefit in return for the fulfilment of a predetermined condition and is frequently used in the deliverance of economic assistance, as well as in the perspective of EU enlargement (Cierco 2011, 144). Negative conditionality is understood as a punishment if a precise obligation is absent, and results in most cases in sanctions (Tocci 2008, 882). So, conditionality can be used to promote good governance by combining appealing rewards with certain conditions of democratic development. As reinhard states (2010, 200), conditionality as a strategy depends on one basic condition: two actors have to be in place with certain interests. In this case, the Serbian government and the EU have to be capable of acting in general, plus acting rationally on a consistent cost-benefit calculation. According to Janine reinhard (2010, 200), “the incentives offered by one actor can be either social (national and international prestige and appreciation) or material (financial aid or trade liberalisation), but they have to be of certain attractiveness” for one of the actors which, in this case, is the Serbian government. reinhard identifies the following as being the main characteristics of conditionality: “conditionality is a top-downapproach acting in a state-to-state constellation; conditionality works on a formal, direct, short-term level; conditionality depends on clear conditions; compliance with these conditions can be observed and measured” (2010, 200). But, if conditionality is a “top-down approach in a state-to-state constellation,” it can only produce changes at the governmental level, in other words, the democratization process can only be influenced top-down, by governmental elites. As reinhard (2010, 202) concludes in her article, key actors of a democratization process, namely civil society, economic elites, political parties, the administration or judiciary at a local or regional level cannot be reached through conditionality. Looking at this argument, we can thus affirm that conditionality works when it is necessary to elaborate reforms in the legal frameworks of the justice or the administrative sector. At this level, it is up to the government either to accept, or not, these changes according to the EU orientations and guidance. Taking into account the significant amount of EU legislation that has been absorbed in recent years in important areas such as the justice sector, we can argue that in Serbia, the strategy of conditionality has been functioning at the administrative and government level. However, at the societal level, the situation is completely different. When we observed the implementation and the respect of these legal frameworks by society in a daily basis, conditionality reveals its real limitations, especially in a region like the Western Balkans, or in a country like Serbia. As we are going to argue in the next part of the article, the heritage from the past, the strong influence of ethno-nationalism, the culture, values and the perceptions of society regarding democracy, understood as freedom of the collective, and not as freedom and equality of individuals, continue to challenge the development of democracy and the implementation of democratic values in this group of countries. A change of mentality and culture cannot be reached by a state-centred top-down approach as conditionality. And this is the main problem in the Serbian case. While the legal basis has developed further, the implementation of laws needs to be seriously strengthened and respected by society in general. JoUrNAL of CoNTEMPorAry CENTrAL ANd EASTErN EUroPE 7 Good governance in Serbia The most important prerequisite of good governance is security governance, which assures a framework for the application of all other conditions (Caluser and Salagean 2007, 14). Security problems appear in all post-conflict societies. Problems such as weak state institutions, inability of the legal institutions3 to control crime and erosion of the judiciary system are a threat to peace and to the transition processes. organized crime, for example, challenges the security of individuals and the community, both internally and internationally. Thus, well-functioning legal institutions and governments bound by the rule of law are essential to good governance. Weak legal and judicial systems, where laws are not enforced and non-compliance and corruption prevail, undermine respect for the rule of law, and cause economic degradation (Treisman 2000). Thus, promoting the development of the rule of law, democratic principles and better governance, with an independent, transparent, accountable and efficient judicial and legal system, and a government that applies fair and equitable laws, must be at the centre of any reform process (UNHr 2012). This involves changes to long-standing practices, entrenched interests, cultural habits and social and religious norms. Although a new institutional framework has been slowly and gradually put in place regarding the fight against corruption and good governance of key institutions, there is still a huge gap in Serbia between established norms and institutions and how things are done in practice. Thus, democratic practices have yet to become consolidated and acquire validity and stability. Serbia demonstrated its clear orientation towards becoming an EU Member State when it submitted a request for EU membership in december 2009. In March 2012, the European Council granted the status of candidate country to Serbia and, in June 2013, it decided on opening accession negotiations. European integration as a basic strategic-political orientation and as a strategic framework for the overall democratic and economic development of Serbia, implies continuing the European integration process and fulfilling numerous, complex and difficult reforms in key areas of the rule of law, particularly judicial reform and anti-corruption policy, and independence of key institutions (European Integration office 2011, 11). for now, Serbia is considered by the European Commission (2013a, 4) to have a “satisfactory track record in implementing the obligations of the Stabilisation and Association Agreement.” In december 2012, the Serbian government adopted an action plan to pursue the findings of the Commission’s 2012 progress report and, in february 2013, it approved a National Plan for the Adoption of the Acquis for the period 2013–2016. This replaced the National Programme for Integration for 2008–2012 under which 88% of the planned legislation was reported having been ratified (European Commission 2013a, 7). In the last years, the Parliament’s work has been made more transparent and it has enacted several important laws aiming at alignment with the EU acquis but, although “the framework regulating the consultation process has been improved,” the European Commission deems that its “implementation needs to stepped up” (European Commission 2013a, 8). our argument is that the greatest threats to good governance in Serbia come from corruption, organized crime, violence and poverty, all of which undermine transparency, security, participation and fundamental freedoms. New laws in important areas such as the civilian oversight of the security forces, judicial system, fight against corruption and organized crime 8 T. CIErCo and regarding the human rights and the protection of minorities, have been adopted following the EU instructions. However, although the legislative and institutional framework for the reform of the judicial sector and the fight against corruption and organized crime is in place, the European Commission argues that further efforts are needed to ensure “full implementation of the legal framework and international instruments” (European Commission 2013a, 8). overall, in the two last European Commission reports about Serbia’s progress towards the EU, the reference to the fact that the implementation of laws in Serbia needs to be seriously strengthened is constant, stating that the problem is not the legislative framework, but its slow enforcement and implementation. one good example is the new law on Public Procurement. Although it was adopted to increase transparency, preventing corruption and conflicts of interest, it needs still to be fully implemented. The same happens in crucial sectors of the rule of law like the justice sector. Looking at judicial reform in Serbia, it is possible to argue that this is in a good track after the adoption of a new national judicial reform strategy for the period 2013–2018. for the European Commission (2013a, 39), “this strategy is built around the key principles of independence, impartiality and quality of justice, competence, accountability and efficiency of the judiciary.” A set of judicial laws and the updating of others (such as the Law on judges, the Law on Public Prosecution, the Law on the High Judicial Council or the Law on Courts organisation) were adopted in the last years and have contributed to substantive changes in Serbia’s judicial system. But, as Vida Petrovic Skero, President of the Supreme Court argued in an interview in 2008: although an important set of judicial laws has been adopted, they were not implemented, the law on judges has been altered eleven times and the implementation of legal regulations pertaining to the law on organisation of Courts has been deferred eight times. (Avramovic and Naas 2008) The judicial reform in Serbia has followed the path that has been pointed out by the EU, however, several problems regarding the independence of the judiciary or the impartiality and accountability of judges still persist. While the attention of the international community to rule of law issues is strong, domestic political support remains precarious. for instance, across the region, the party inclinations of judges play an important role in determining who will be appointed, and there are reports of political interference in the work of prosecutors and judges (Markovich 2008, 523). Problems with the judiciary also include the low level of expertise among judges in issues related to EU integration, and a big backlog of cases (Eriksen and Kalleberg 2009, 34). one less often mentioned challenge is how judges themselves perceive their independence: independence is often seen as a privilege of judges, rather than as a privilege and right of citizens in a democratic state based on the rule of law (roos in Eriksen and Kalleberg 2009, 34). The mission of the judiciary is the realization of the principle of constitutionality and legality and the protection of individual rights and interests (Begovic and Mijatovic 2001, 82). The awareness of citizens that judiciary organs do not act legally and that they are prone to influence, leads to the deterioration of legality and social morals. 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