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Jovana Marović

The rule of law reform in the Western Balkans is trapped between the lack of interest of the ruling political elites to change the autocratic practices and the inability of the European Union to encourage and support it. Up-to-date success in overcoming key issues, such as lack of accountability, integrity, independence and transparency, is bounded to legislative and technical without substantial improvements. Moreover, contrary to the commissioner Hahn’s recent statement which highlights need for “political will instead of political games, and real reforms not on paper but on the ground,” the EU is not delivering concrete inputs on how to achieve it. The European Union’s role in assessment of achieved progress is insufficient and imprecise and some of the reasons are the following:

The EU often remains silent on issues that should be highlighted in the first place. By failing to address violations of the rule of law and the erosion of democratic standards through smear campaigns against civil society, media or independent institutions such as in the “Savamala” case, the EU tacitly supports the elites in power, no matter the autocratic mode of their governance. Through entitling the so-called pro-European elites whose commitment is questionable and power almost unlimited, the EU creates room for further decline of the rule of law.

Although the EU insists on tangible results, the heart of the rule of law and fight against corruption reforms currently represents logic of “providing the quantity, and not quality”. Apart from the deficiencies in the defined indicators and reporting framework, the early benchmarking system also has to be regularly developed during the process. There is also need for prioritization of reforms and better follow-up activities.

Improving the capacity does not automatically imply a better rule of law. In practice, better performance of the law enforcement agencies is not a guarantee that the application of the law is unbiased and impersonal and can also lead to further politicization of the process, which automatically derogates the key principle underlying the rule of law: that everyone is equal before the law. Such view is common for the majority of the Western Balkans’ citizens. Overall, almost every second citizen in the WB does not believe in the independence of the judiciary or that the law is applied equally to all.

Finally, the forceful legislative activity does not mean increased quality of regulations or shifts in practice. In addition to the particular constraint of the poor law implementation, a problem is also lying in the definition of norms in a way that makes room for corruption. Regardless of the manner of civil society participation in the policymaking, state authorities are frequently marginalizing their constructive role by refusing and ignoring the contributions without reasonable explanation or by concealing important information. The rule of law also entails a favourable environment for media and civil society engagement, free from labelling, intimidation and attacks. Especially bearing in mind that many of the above-mentioned problems can be removed with the direct support of civil society on the basis of impartial monitoring and evaluation processes.

Jovana Marović is the Executive Director of the Politikon network, Podgorica-based think tank, member of the Balkans in Europe Policy Advisory Group (BiEPAG) and a member of the Working group for Chapter 23, Judiciary and Fundamental Rights, within the EU accession negotiations of Montenegro.

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