European Voices By Alan Riley 26 Feb. 2014
Brussels needs the courage and determination to push for effective changes in Serbia during the accession negotiations, writes Alan Riley, professor of law at the City University London.
The European Union opened membership negotiations with Serbia on 21 January. The EU had agreed to formal negotiations on EU membership as a reward for Serbia’s agreement to normalise its trade and border relations with Kosovo. From a membership perspective, the ex-Yugoslav states are a much tougher prospect to bring into the Union than previous applicants.
The fundamental difficulty with all the ex-Yugoslav states (save for Slovenia, which escaped rapidly and lightly from the Yugoslav Federation in 1991) is that for them the end of communism meant war and disaster. The fall of the wall in the Baltic states, central and eastern Europe meant a positive shift toward the European liberal democratic values, assisted by EU transition projects, support from the United States, the returning diaspora, reformed communists and dissidents. By contrast, for the ex-Yugoslav states the fall of the wall meant collapse of the Federation, war, enlargement of criminal mafias and their penetration of state institutions.
Serbia, which was at the core of the Balkans conflict, has made some progress in the 13 years since the fall of Slobodan Miloševi?. Major war criminals including Ratko Mladi? and Radovan Karadži? have been handed over to the International Criminal Tribunal for the former Yugoslavia, and relations with Kosovo have been normalised. Nevertheless, some of the dysfunctional behaviours from the time of the Balkan wars have continued and have become entrenched.
It is true that Serbia has sought to adopt some EU standards. However, the result of some of these reforms remains questionable. For instance, a reform of the judiciary in 2009 was supposed to result in a more professional and independent judiciary. However, rather than just introducing robust, transparent and objective criteria for the appointment of new judges the opportunity was taken to re-appoint the entire judiciary. Usually in democratic states, holders of judicial office are protected from dismissal save for grave cause and can be dismissed only via special procedures. The Serbian ‘reform’ resulted in the dismissal of several hundred judges in one go with no objective or transparent criteria being applied. Rather than real reform in accordance with EU standards and liberal democratic values, ‘reform’ was adopted in order to undertake what appeared to be a purge. There are, not surprisingly, very high levels of public concern over the integrity of the judiciary. A TNS Medium Gallup poll in June 2012 found that 87% believed that the judiciary had a valuable role to play in dealing with corruption, but also that the Serbian judiciary were too corrupt to play that role.
The saga of Article 359 of the Criminal Code is another telling example. Article 359’s original legal purpose stems from communist times, to stop the looting of state assets by public officials when almost all businesses were owned by the state. It therefore imposed a duty on officials running these businesses not to benefit from running these businesses. This provision remained on the statute book after the end of communism and the liberalisation of the economy. As a business is supposed to be run for benefit and profit, Article 359 provided whoever controlled the state with a wonderfully broad provision to seize assets and remove opponents.
When the EU objected to Article 359, Serbia did reform the provision. However, it then introduced a new article – Article 234 of the Criminal Code – that had a similar effect. There are now a long list of business executives subject to criminal prosecution who face significant assets seizures, ranging from Miodrag Kosti? of MK Group, Milija Babovi? of Victoria Group and Vuk Hamovi? of EFT Group to Serbia’s richest man Miroslav Miškovi? and his company Delta Holding. Although many of these executives were originally charged under Article 359, when the provision was amended their prosecutions were not withdrawn; instead, they were charged under Article 234.
In other words, EU pressure to reform Article 359 resulted not only in the provision’s re-enactment as Article 234, but also resulted in the Serbian government further violating fundamental rights. Since Roman times, retroactive criminal charges have been considered to be a core breach of the rule of law.
Article 359 and its successor Article 234 are likely to make any foreign investor wary of doing deals in Serbia. Levels of foreign direct investment remain resolutely low, and are not likely to improve unless genuine reform of the civil justice system is undertaken. For negotiators in Brussels, the judicial dismissals and Article 359/234 sagas illustrate the nature of the battles they face in ensuring genuine compliance with EU rules and standards. It can only be hoped that Brussels has the courage and determination to use the accession negotiations to foster effective change and not merely accept formalist compliance with the EU’s acquis communautaire. This is in the interest of both Serbia and the EU.
Alan Riley is a professor of law at the City University London.