Democracy and Judicial Reforms in South-East Europe - Between The EU and The Legacies of The Past (PDFDrive)

Contributions to Political Science
Cristina Dallara
Democracy and
Judicial Reforms
in South-East
Europe
Between the EU and the Legacies of the
Past
Contributions to Political Science
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Cristina Dallara
Democracy and Judicial

Reforms in South-East
Europe
Between the EU and the Legacies of the Past
Cristina Dallara
Research Institute on Judicial Systems
National Research Council
Bologna, Italy
ISBN 978-3-319-04419-4 ISBN 978-3-319-04420-0 (eBook)

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Foreword
The present expansion of judicial power in Europe—a worldwide phenomenon

successfully labeled some years ago by Neal Tate and Torbjörn Vallinder as the
“judicialization of politics”—is related not only to long-term social and political
changes but also to a specific set of reforms of the institutional setting of the judicial
system carried out in the last decades. In fact, the introduction and diffusion of
constitutional review and the strengthening of judicial independence have
supported the expansion of the role played by courts in the political system.
These reforms have to be understood as part of a general trend toward strengthening
citizens’ guarantees against abuses on the part of the political branches: the
executive and the legislative. As a result, an institutional transformation has
followed with the legal dimension of contemporary democracies coming out
enhanced, although often at the expense of its political component.
This trend has been supported by different groups with different perspectives:
simplifying a much more complex landscape, judicial power is often seen by
neo-liberal (or, better, conservative) groups as a way of introducing a powerful
check against excessive State intervention in the economy and the society. On the
other hand, also progressive, neo-constitutional circles tend to support powerful
courts, but in this case with the view of entrusting them with the task of enforcing a
widening set of socioeconomic rights. These viewpoints reflect themselves also in
the role of international powerful actors: for instance, with the World Bank seem-
ingly more influenced by the neo-liberal vision and the Council of Europe nearer to
the neo-constitutional outlook. However, although with rather different perspec-
tives, all favor a stronger role for courts in the political system.
It therefore should not come as a surprise the fact that also in the European Union
the trend toward a stronger judicial power has surfaced: after the decision taken in
1993 by the European Council in Copenhagen, the respect for the rule of law—and,
at least de facto, the membership of the Council of Europe—has become a prereq-
uisite for accession to the Union. In this context reforms of the judicial organization
aiming at strengthening judicial independence have acquired an increasing signif-
icance. The argument behind the reforms is rather straightforward. Institutional
judicial independence—i.e., all those arrangements aiming at protecting judges
v
vi Foreword
from improper outside pressures—is deemed to be an essential tool for achieving

the “independence on the bench,” in other words genuine judicial impartiality. In
turn, judicial impartiality is a necessary condition for the establishment of the rule
of law: only impartial judges can guarantee a fair application of the law and
therefore the enforcement of the fundamental rights of citizens. Thus, judicial
independence must be considered a necessary part of the implementation of the
rule of law.
The work by Cristina Dallara aims at analyzing this process of judicial reform in
South-Eastern Europe, the geo-political area where it is more likely that the EU will
expand itself in the next future. It concerns some new accessed EU states (Croatia,
Romania, and Slovenia) as well as a candidate country (Serbia): all have experi-
enced in the past a long period of communist rule. Thus, Dallara’ analysis contrib-
utes to the general discussion on institutional reforms in post-authoritarian and
post-totalitarian states. In fact, the cases considered offer a good possibility of
testing the impact of deep institutional reforms on a quite diversified set of
democratizing countries. It is the sort of the “natural experiment” pointed out two
decades ago by Jon Elster. Its results can provide useful knowledge also for
prospective new candidate members, since the area is likely to provide in the future
more candidates (Macedonia, Montenegro, or even Albania). Finally, her analysis
highlights also important and often neglected new phenomena like the judicial
networks—i.e., transnational groups of legal and judicial actors—that play a crucial
role in the process of reform design, approval, and implementation.
Although some of the reforms are still in the course of implementation and
additional time is needed for a comprehensive evaluation, the work of Cristina
Dallara offers already some useful evidence to be taken into account. First of all,
laundry lists—also of potentially positive changes—are not enough: the content of
reforms must be well coordinated and related to the goals sought. For instance, the
traits of judicial independence must be related to the goals sought, i.e., improving
judicial impartiality and, in this way, the overall performance of the judicial system.
Therefore, judicial independence should not impair the establishment of effective
checks on the professional qualities of judges.
The analysis by Dallara is also a useful reminder that designing and passing a
law is not enough. Implementation is always crucial: the risk of reforms that remain
wholly or in part on paper is always high and especially so when aimed at radically
overhauling a well-entrenched institutional tradition (in this case characterized by
persistent intrusions by politics on the administration of justice). In any case, the
fact not to be forgotten is that judicial reforms are not just a technical issue: they are
a matter of “high politics,” because courts—especially when provided with consti-
tutional review and institutional independence—cannot but have a strong impact on
politics. It follows that the actors involved in the process of reform implementation
must always be taken into account: as Dallara emphasizes, national actors (“change
agents”) play a crucial role. Successful reforms need the mobilization of powerful
national actors interested in independent and well-functioning courts.
The last considerations remind us of the complexity of the problems involved. In
fact, while the indispensable role of national change agent must be recognized, the
Foreword vii
fact that their interests could not always coincide with the good functioning of the
judicial institutions should also be considered: the risk of corporatist interests
having an excessive role in the implementation of judicial reform is concrete. For
instance, in the case of Romania (and very likely also in that of Bulgaria) reforms
have been “captured” by sectors of the judiciary in order to protect their immediate
interests, often at the expense of the good performance of the judicial system.
At the same time, we should not forget that the new significant role taken over by
courts call for appropriate professional skills on the part of the judges: in fact, the
performance of more complex tasks calls for an increasing sophistication of the
culture of contemporary judges. Thus, it could be questioned whether the traditional
legal training still characterizing most European judges can be apt to the new tasks.
The fact that judicial training be increasingly entrusted to judges-controlled insti-
tutions cannot be considered by itself satisfactory.
Apart from these considerations, it remains that the present strategy of judicial
reforms implies a mounting role of non-elective institutions that cannot be pursued
indefinitely. The problem of the “democratic deficit” does not regard only the EU
but also, at least to some extent, independent courts and the political systems in
which they act. Some balance between the competing needs of popular sovereignty
and the rule of law must be reached, for no other reasons that courts cannot be for
long out of step from the attitudes prevailing in political system without triggering
strong tensions and possible, dangerous backlash.
Therefore, this book explores in depth the process of judicial reforms and its
implications in some significant transitional countries, providing in this way a
welcome contribution to the analysis of the complex role of institutional reforms
in the process of democratic consolidation.
Bologna, Italy Carlo Guarnieri

About This Book
The book analyzes the topic of judicial reforms in four countries of South-East
Europe, focusing on two specific factors that have influenced the reforms in the past
two decades: the role played by the European Union in light of the east Enlargement
process and the legacies of the communist regimes. Specifically, the aim is to
account for similarities and differences in the reform paths of Slovenia, Romania,
Croatia, and Serbia. In each country, in fact, the influence of the EU policies has
been differently mediated by national factors that, broadly conceived, may be
considered as expressing the legacies of the past regimes. In some cases, these
legacies challenged judicial reforms and inhibited the influence of the EU; in other
cases, they were positively overcome by following the route suggested by the
EU. Some explanatory factors for these differences will be proposed drawing
from democratization studies, Europeanization literature, and comparative judicial
systems.
The book focuses on countries having different status vis-à-vis the EU and
differently involved, in term of timing, in the EU accession process: some of
them are new member states entered in 2004 (Slovenia) or in 2007 (Romania);
others were, until recently, acceding countries (Croatia) or candidates to the
membership (Serbia). This comparison allows investigation of the power of EU
conditionality in different phases of the EU enlargement process.
ix
Acknowledgment
This book is the result of several years of research activity and it was only possible;
thanks to the inspiration, support, and schooling of many colleagues and friends and
to the financial support of a number of research projects.
The one who, in the early hours, stimulated my interest on the topic of the EU
rule of law promotion in post-communist countries was Leonardo Morlino, the
Director of the PhD School in Political Science at the University of Florence and
my thesis co-supervisor. His scientific curiosity and inexhaustible interest for the
academic research were the main stimulus for my work and confirmed his extraor-
dinary capacity of young scholars’ mentor. The participation within the project
“Evaluating EU promotion of democratic Rule of Law: Morocco, Romania, Serbia-
Montenegro, Turkey and Ukraine” led by Stanford University and the University of
Florence (from 2003 to 2006) and the subsequent collaboration in the book “Inter-
national Actors, Democratization and the Rule of Law: Anchoring Democracy?”
(Magen and Morlino, eds.) set the basis for my research activity.
Then, I further developed the topic of judicial reforms in post-communist
countries in the context of the multiyear research project on “The role of the
European Union in strengthening the rule of law and promoting judicial system
reforms in candidate and potential candidate countries,”1 under the valuable
supervision of Carlo Guarnieri, my PhD co-supervisor. Thereafter, my research
focused specifically on “Judicial reforms in South-East Europe: actors, dynamics
and process”; thanks to a post-doctoral fellowship and, later on, to a research
assistant position at the Department of Political Science2 of the University of
Bologna.
The above-mentioned projects allowed me to develop carefully each step of the
research and to deepen the necessary knowledge of the South-East Europe coun-
tries. To this end, I did several onsite fieldwork periods in the four countries
1
Research project directed by Leonardo Morlino and funded by the MIUR—Italian Ministry for
the Research and University during the years 2005–2007.
2
Today the Department is named Department of Political and Social Sciences.
xi
xii Acknowledgment
analyzed and in Brussels, where I met judges, prosecutors, ministry of justice

representatives, other relevant judicial actors, NGOs, and EU officials. The book
is largely based on data and results collected during this fieldwork. I have to
sincerely thank all the judges, prosecutors, government officials, and activists
who I meet in Brussels, Belgrade, Zagreb, Ljubljana, Bucharest, and Skopje.
Fieldwork in these countries represented the most interesting and stimulating
experience of my career.
Many colleagues and friends were my mentors in developing this editorial
project. First of all, Carlo Guarnieri and Daniela Piana who supported me in setting
the basis of this research, in defining the theoretical framework behind, and guiding
the case studies analysis. Their comments, remarks, and advices encouraged me at
every stage of the project.
Then, the finalization of this editorial project was supported and encouraged by
the director, colleagues, and associates of the Research Institute on Judicial Sys-
tems of Bologna (IRSIG-CNR). I do not list all their names but I am sure they are
aware of their importance.
I’m also grateful to Ramona Coman for a long-lasting collaboration and
exchanges of ideas, to the Centre d’étude de la vie politique (CEVIPOL) of the
Universitè Libre de Brussels, and to the Institut des hautes etudes sur la Justice
(IHEJ) in Paris that both hosted me for fruitful research visits. My knowledge and
capacity have been immensely enriched by all the colleagues I met in conferences,
workshops, and project meetings all around Europe. A special mention goes to the
European University Institute (EUI) community and to the Global Governance
Programme that I have had the chance to attend since 2011.
Finally, my gratitude goes to whom in different places, ways, and moods stay
with me every day.
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xvii
1 Judicial Reforms in SEE Democratising Countries. Towards a
Contextualized Framework for the Analysis . . . . . . . . . . . . . . . . . . . 1
1.1 Judicial Reforms in Transition: Main Theoretical Approaches and
Concerns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 The EU Policy Promoting Judicial Reforms in the Enlargement
Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.2.1 The EU Political Conditionality and Socialization . . . . . . . . 7
1.2.2 The EU and the ‘Potential Candidates’: Any Lessons
Learned? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
1.2.3 Monitoring Countries Progress Towards the Accession . . . . 13
1.3 Beyond the Domestic Level: The Interaction Between
International and National Actors . . . . . . . . . . . . . . . . . . . . . . . . . 16
1.3.1 The Enlargement (East) Europeanization. . . . . . . . . . . . . . . 17
1.3.2 Towards a Contextualized Domestic Influence. . . . . . . . . . . 20
1.4 Research Framework and Methodology. . . . . . . . . . . . . . . . . . . . . 21
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
2 Smoother Judicial Reforms in Slovenia and Croatia: Does the
Legacy of the Past Matter? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
2.1 Background Conditions: Justice System During the Socialist
Yugoslavia. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
2.2 Slovenian Pre-accession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
2.3 Judicial Reform in Slovenia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
2.4 Croatia and the EU: The Long, But Successful, Pre-accession Path. . . 41
2.5 Judicial Reforms in Croatia. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
2.5.1 From Politicization of the Judiciary to the First Reforms
(1990–2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
2.5.2 The Real Push Towards Judicial Reform (2004–2013) . . . . . 48
2.6 Conclusions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
xiii
xiv Contents
3 The Successful Laggard in Judicial Reform: Romania Before and

After the Accession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
3.1 Romania’s Path Towards the EU. . . . . . . . . . . . . . . . . . . . . . . . . . 57
3.2 Background Conditions: The Judiciary Before and During the
Ceausescu ‘Sultanate’. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
3.3 Judicial Reforms in the Pre-accession Phase (2000–2007). . . . . . . . 62
3.4 Non-judicial Reforms After the Accession (2007–2010). . . . . . . . . 66
3.5 An Enduring Institutional Crisis (2010–2012) . . . . . . . . . . . . . . . . 70
3.6 How Can the Failure Be Explained? Relevant Factors
and Conditions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
3.6.1 Credible Conditionality and Change Agents/Veto Players
in the Pre-accession Phase . . . . . . . . . . . . . . . . . . . . . . . . . 72
3.6.2 Weak Conditionality and ‘Politics Above All’ in the
Post-accession Phase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
3.7 Conclusions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
4 The Long and Disputed Judicial Reform Process in Serbia:
Legacies of the Past and Predominant National Actors . . . . . . . . . . . 81
4.1 Serbia and the EU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
4.1.1 The Reformist Honeymoon (2000–2003). . . . . . . . . . . . . . . 82
4.1.2 The Fragile Democracy and the Questioned EU Integration
(2004–2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
4.1.3 Tadić and Improvements in the Brussels-Serbia Dialogue
(2008–2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
4.1.4 Social Crisis and the Return of Nationalist Parties:
A Peculiar Path Towards the EU? (2012–2013). . . . . . . . . . 87
4.2 Background Conditions: The Judiciary Under Milošević. . . . . . . . . 89
4.3 Judicial Reforms from 2001 to 2011: Political Parties as
Dominant Political Actors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
4.4 A Shallow European Judicial Reform . . . . . . . . . . . . . . . . . . . . . . 97
4.4.1 2000–2008: Legacies, Political Parties and
the Fake-Reform . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
4.4.2 2008–2012: Massive Donors’ Assistance, Tadić as Change
Agent and Some Results. . . . . . . . . . . . . . . . . . . . . . . . . . . 101
4.5 Conclusions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
5 EU-Driven Judicial Reforms: Any Lessons Learned? . . . . . . . . . . . . 107
5.1 The Credibility and Determinacy of the EU Conditionality. . . . . . . 109
5.2 National Mediating Factors and Constrains . . . . . . . . . . . . . . . . . . 110
5.2.1 Change Agents Versus Veto Players . . . . . . . . . . . . . . . . . . 111
5.2.2 Conflict on EU Accession and Requirements. . . . . . . . . . . . 112
5.2.3 Legacies of the Past and Structural Constraints . . . . . . . . . . 113
Contents xv
5.3 Lessons Drawn and Future Challenges: Beyond Conditionality? . . . 116

5.4 Judicial Networks as the Missing Link in Promoting EU-Driven
Judicial Reforms?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
Introduction
The breakdown of authoritarian regimes in Eastern Europe and the incremental

democratization of such systems is surely one of the most crucial events to have
taken place in the past three decades. In these contexts, the functioning of justice
systems has increasingly become one of the key aspects of the transition process.
The establishment of an independent, fair, and efficient judicial system is an
important instrument for a country breaking with its authoritarian past. Courts
became crucial actors in the transition process because they contribute to the
development of new legislation, help adapt old rules to the new context, and prevent
the arbitrary use of power (Larkins 1996; Kryger et al. 2006). Moreover, according
to the literature on democratic transition and consolidation,3 the existence of an
independent and functioning judicial system is the core element of the rule of law.
As Linz and Stepan (1996) indicate, the rule of law is one of the interconnected and
mutually reinforced conditions that must exist or be crafted for a democracy to be
consolidated. The extent to which the rule of law exists in a particular regime
reflects the entire democratic quality of that regime (Linz and Stepan 1996). In this
context, the goal of legal and judicial reforms is to transform the legal systems from
their previous role as mechanisms for autocratic rule and the maintenance of
communist economies into the bases for the rule of law and free market economies.
In particular, judicial institutions created in non-democratic contexts need to be
reformed so that they become suitable for new democratic contexts and tasks
(Gargarella 2004).
Despite the importance of this topic, empirical research on democratic transi-
tions has to date neglected or only marginally treated the transformation of these
judicial institutions. Moreover, when this particular issue has been considered, it
has usually been related to other topics. Other types of institutions have been taken
3
The list of significant contributions on democratic transitions is a long one, cited here are only
some of the seminal works: O’Donnel, Schmitter and Whitehead (1986), Pridham, Herring, and
Sanford (1994), Linz and Stepan (1996), Bartole and Grilli di Cortona (1997), Morlino
(1998, 2003).
xvii
xviii Introduction
into account, such as electoral systems, executive powers, and other legislative
areas (Magalhaes 1999; Herron and Randazzo 2000).
Some research has been conducted on the transformation of judicial systems,
especially with regard to transitions occurring in Southern Europe and Latin America
(Garro 1993; Garcia 1994; Finkel 2004; Magalhaes et al. 2006). But, especially until
the mid-2000s, research rarely considered any of the countries that emerged in the
post-communist area (Boulanger 2003). With the exception of a few pioneering
works (Elster 1991; Hesse 1993), very little inquiry has focused on the judicial
systems of Eastern Europe and the Balkans. The few studies available have concerned
themselves mainly with the role and function of constitutional courts (Kryger and
Czarnota 1999; Morawski 1999; Sadurski 2003) and the concept of judicial activism
(Herron and Randazzo 2000; Ishiyama and Ishiyama 2000; Boulanger 2003).
The importance of judicial reforms for democratizing countries has been
highlighted in relation to the EU enlargement process in Eastern Europe countries.
The absence of an independent and fair judicial power before the accession of the
post-communist countries to the EU required the acceleration of reforms in this
field and the establishment of well-functioning judicial institutions (Piana 2009;
Dallara 2010). It was in the context of enlargement studies (Schimmelfennig and
Sedelmeier 2005), especially beginning in 2005, that the topic of judicial reforms in
Eastern European countries increasingly attracted the attention of political science
scholars. The EU policy promoting judicial reforms was then analyzed in case
studies focused on Hungary, Poland, and the Czech Republic (Piana 2010), Roma-
nia (Coman 2007; Dallara 2010), Bulgaria (Delpeuch 2007), and Serbia, Croatia,
and Macedonia (Dallara 2010). From an empirical point of view, particular atten-
tion was paid not only to the independence of the judiciary, which was an essential
condition for the EU, but also to the mechanisms by which the EU could influence
the evolution of those reforms (Coman 2013).
Despite the fact that academic research has focused only recently on this topic,
since 2000 many international foundations, NGOs, and international organizations
have incrementally concentrated their activities on promotion of the rule of law and
judicial reforms in Eastern Europe. The bulk of the assistance schemes
implemented by those international actors have contributed to the diffusion of
knowledge on this topic. Crucial data are provided by, among others, the CEPEJ
(Council of Europe Commission for the Efficiency of Justice in Europe) with its
data on “The Evaluation of European Judicial Systems,”4 the World Bank with its
“Rule of Law” indicators within the “Worldwide Governance Indicators” pro-
gram,5 Freedom House with its “Nations in Transit” reports containing a chapter
on “Judicial framework and Independence,”6 and ABA-Ceeli with the “Judicial
Reform Index.”7 Further relevant information is obtained through specific
4
See the web-page http://www.coe.int/t/dg1/legalcooperation/cepej/evaluation/default_en.asp
5
See the web-page http://info.worldbank.org/governance/wgi2007/
6
See the web-page http://www.freedomhouse.org/template.cfm?page¼17&year¼2006
7
See the web-page http://www.abanet.org/ceeli/publications/jri/
Introduction xix
programs of scientific foundations such as the Open Society Institute (EUMAP—

Judicial Independence and Judicial Capacity assessment)8 and the Konrad
Adenauer Foundation (Rule of Law Program South East Europe).9
There are several reasons for considering judicial reforms in the post-communist
area an important subject for analysis from a political science perspective and using
in particular concepts and hypotheses drawn from the European studies and liter-
ature on democratization.
Firstly, judicial reforms are at the core of the EU rule of law promotion strategy
toward third countries. The European Commission (EC) intensified its promotion of
judicial reforms mainly with the adoption of the Copenhagen Criteria in 1993. The
criteria, in fact, stated that candidate countries must achieve stability of institutions
guaranteeing democracy and the rule of law. Although the criteria did not originally
specify reform of judicial systems as one of the conditions to fulfil for EU
accession, the interpretation of the “rule of law” concept by the EC has been largely
built on the concepts of judicial independence, judicial capacity, fair trail, and
efficient functioning of the court system (Piana 2009; Dallara 2005; Coman 2007).
Since 1998, the annual Enlargement Progress Reports issued by the EC for all the
candidate and potential candidate countries have included a specific section entitled
“Judicial system” which deals with “Political criteria” (Baracani and Dallara 2005).
Secondly, the experience of some new EU members (Romania and Bulgaria) has
further highlighted that, although reform of the judiciary is one of the key priorities
with which countries must comply to become members of the European Union,10 it
is a particularly critical policy field, extremely resilient to changes, and particularly
threatened by the influence of domestic political actors. In fact, legacies of the past
concerning organization and personnel have proved particularly challenging, and
they have inhibited concrete institutional changes (Magalhaes 1999). In these
countries, although there are some exceptions, domestic political actors continue
to be the main players in the judicial reform process (Di Federico 2004). Every
substantial change in the organization of the judicial system has been slowed down
by fears among the main political actors that they will lose their power over the
judiciary (Herron and Randazzo 2000; Hiber 2005). In some other cases, judges
themselves, especially in higher courts, have constituted a kind of antireform
blockade intended to maintain the status quo and preserve their privileges. Judicial
reform can thus be considered in all respects an area of high politics (Magen and
Morlino 2009), in which the distribution of the costs and the benefits deriving from
these reforms is extremely complex. The interests at stake are those of political,
bureaucratic, and judicial actors reflecting the entire complexity of the institutions
and capacity-building in post-authoritarian countries. The 45 years of communist
government and administrative systems left a profound impact on the organization
8
See the web-page http://www.eumap.org/topics/judicial
9
See the web-page http://www.kas.de/proj/home/home/103/2/
10
For Romania and Bulgaria, judicial reforms proved to be the key issue around which the 2004
decisions on the accession postponement were made.
xx Introduction
of the judiciary, albeit with some differences in political and historical circum-
stances. The institutions inherited from the socialist organization of justice share
common features in many countries of the area. These common features include
political pressure on judges, the role of judges in implementing party policies, and a
residual role of courts in adjudicating proceedings involving economic issues. In
this regard, an added value of this book is that it analyzes a topic rarely touched
upon by the political science literature notwithstanding its importance.
In fact, the study of judicial reforms in South-eastern Europe post-communist
countries reflects the entire complexity of the institutional reforms and capacity
building in post-authoritarian contexts and could offer interesting hints on broader
topics such as the role of the elites and changes in the structure of powers (Di
Federico 2012).
Finally, this book contributes to improving the diffusion of knowledge about a
group of countries (those of South-eastern Europe) of the post-communist area
which, to date, have been rather neglected compared with their neighbors in
Central-Eastern Europe (CEE). The term “South-eastern Europe” was introduced
by some historians (Todorova 1997) at the end of the 1990s to denote a group of
countries belonging to the geographical region known as the Balkans. Because of
the negative connotations of the term “Balkans,”11 writers, historians,12 and some
international organizations suggest the use of the term “South-Eastern Europe” to
refer to the former Yugoslavia countries plus Romania, Bulgaria, and Albania.
Slovenia and Croatia are occasionally considered to lie outside this group.13
Concerning the EU policies regarding South-eastern Europe countries, one notes
similarities among the groups of countries that became, sooner or later, European
member states. Some years after launching the pre-accession strategy for Central
and Eastern Europe, the EU extended the application of this policy to the countries
of the Western Balkans, defining a specific strategy for the region named the
“Stabilization and Association Process” (SAP). Because of the strategic security
interest of the area, improvement of regional cooperation among the Western
Balkan states and cooperation with the International Criminal Tribunal for the
former Yugoslavia (ICTY) were defined as specific measurements with which to
judge their qualification for EU integration (Council of the European Union 2003b;
Trauner 2009). Besides the 1993 Copenhagen Criteria, the aspiring candidate
countries are also expected to meet country-specific conditions stemming from
various peace agreements: e.g., UN Resolution 1244, and the Dayton, Ohrid, and
Belgrade agreements (Trauner 2011).
11
The pejorative connotation of the term “Balkans” is linked to the term “Balkanization,” which in
the twentieth century was used to describe the process of fragmentation or division of a region or
state into smaller regions or states often hostile to, or non-cooperative with, each other.
12
See, for example, Todorova (1997), Banac (2008).
13
The first EU definition of Southeast Europe was provided in the context of the Stability Pact for
South Eastern Europe. This was a programme launched in 1999 as the first comprehensive conflict
prevention strategy of the international community, aimed at fostering peace, democracy, respect
for human rights, and economic prosperity in South-Eastern Europe. For more information see:
http://www.stabilitypact.org/
Introduction xxi
In spite of these specificities, the same tools (conditionality, socialization,

democratic example, training), values (judicial independence, judicial capacity,
fair trial, efficiency, etc.), and programmes (twinning, assistance projects, confer-
ences, study visits) have also been applied to all countries of the Western Balkans
region (Piana 2009). All the countries in the region have, in fact, the prospect of
becoming members of the European Union. However, because EU membership was
not realistic in the short term, and because the EU did not set a clear time frame for
the Western Balkans accession, the prospect of membership remains, for many of
those countries, a rather abstract possibility without palpable political implications.
What differed, as it will be explained below, was the power of the political
conditionality that the EU was able to exercise in relation to the membership
perspective (Noutcheva 2012).
In this context, the aim of the book is to explore which explanatory factors
seemed to better account for trajectories and results of judicial reforms in four
countries of South-Eastern Europe: Slovenia, Romania, Croatia, and Serbia.14 The
starting point is that the early approaches used to analyze judicial reforms in Central
and Eastern Europe post-communist countries failed in predicting quite convergent
and quick results also for the other countries of the post-communist area, especially
for the Balkans (Hammerslev 2007; Coman 2013). Differently, this study claims
that in each country the influence of the EU policies promoting judicial reforms was
mediated by national factors producing divergent trajectories and outcomes. In
some cases domestic actors challenged judicial reforms and hampered the influence
played by the EU strongly opposing the empowerment of judicial institutions and
actors; in other cases, political and judicial actors were more opened to follow the
path using the EU influence as a strategic tool to play in the domestic arena.
The main research questions addressed in the book are: Which explanatory
factors better account for the different reform trajectories? How the different
paths of interaction between the EU and domestic actors (both judicial and political
actors) could be explained?
The analysis of the four cases confirm that in order to understand the different
trajectories and outcome of the EU-driven reforms several factors and explanatory
assumption need to be examined. Moreover, these study confirm as the
one-dimensional approaches, both those looking only at the EU action and those
looking only at the domestic level, are not sufficient to understand the complex
interaction that occurs between the two level in sensitive policy field such as the
judiciary.
In each country, in fact, the influence of the EU policies has been differently
mediated by national factors that, broadly conceived, may be considered as
14
Slovenia is not usually included in analyses of the South-East Europe region as it conceived as
the frontrunner case of the Former Yugoslavia. In this book it is selected precisely because of its
peculiarity. Although it was part of the Yugoslavia Federation and thus experienced similar
conditions during the Socialist regime, it does not have large ethnic minority and it was the only
state in the area that had the early opportunity to integrate into the EU. The aim is to test how these
specificities may also have impacted on the outcomes of judicial reforms.
xxii Introduction
expressing the legacies of past authoritarian regimes. In some cases, these legacies
challenged judicial reforms and inhibited the influence of the EU; in other cases,
these legacies were positively overcome by following the route suggested by
the EU.
The countries selected are “crucial case studies” (King, Keohane and Verba
1994)15 having a different status vis-à-vis the EU in relation to the enlargement
process. The selection of the four cases allows to test if and how the conditionality
related to judicial reforms evolved in the different group of countries involved in
the enlargement process. The book focuses, in fact, on countries that have been
differently involved in the EU accession process; some of them are new member
states; others are candidate countries or potential candidates (Table 6.1).
Country Status relative to the EU

Slovenia New member state since 2004
Romania New member state since 2007
Croatia New member state in 2013
Serbia Candidate country (since 2012)
Precisely, Slovenia is a new member, entered with the first group in 2004;
Romania entered in 2007 with the second round; Croatia accession was in July
2013; and Serbia is still a candidate country.
In fact, it is apparent that, in the countries selected, the adoption of rules
concerning judicial reform becomes more likely the closer the day of EU accession
approaches. The further the pre-accession process advances, the higher becomes the
credibility of promises in enlargement conditionality. Similarly, in some of the
countries selected, the low determinacy of EU conditionality and of the rules from
which it is derived has reduced the likelihood of rule adoption. “Determinacy”
refers to both the clarity and formality of a rule (Schimmelfennig and Sedelmeier
2005). Those mentioned above are some of the conditionality properties that may
influence compliance with the EU requirements; but EU action promoting judicial
reforms is also differently mediated by national domestic factors.
This book originates from research carried out by the author from 2004 to 2012.
A preliminary analysis of the topic was conducted in the context of the author’s
PhD thesis in Political Science at the University of Florence (2003–2006). The
subject of judicial reforms in post-communist countries was then further developed
while she worked within a multiyear research project on “The role of the European
Union in strengthening the rule of law and promoting judicial system reforms in
candidate and potential candidate countries,”16 under the supervision of Leonardo
Morlino and Carlo Guarnieri. Thereafter, the research focused specifically on
“Judicial reforms in South-East Europe: actors, dynamics and process”; thanks to
a post-doctoral fellowship and a research contract at the University of Bologna. The
15
See Chap. 1 for a detailed explanation of the research questions and methodology.
16
The above-mentioned research project was funded by the MIUR—Italian Ministry for the
Research and University during the years 2005–2007.
Introduction xxiii
main objectives of the research included the “mapping” and analysis of the judicial
reform processes undertaken in the countries of South-eastern Europe from 2000 to
2010 in light of the EU’s activity in this field. The above-mentioned research
projects foresaw the organization of several on-site fieldwork stay in the four
countries analyzed and in Brussels, where the author met judges, prosecutors,
ministry of justice representatives, and other relevant judicial actors, NGOs, EU
officials, and so on. The book is largely based on data and results collected during
this fieldwork and on the subsequent data analysis.
Given these premises, Chap. 1 will review the main theoretical approaches used
to analyze judicial reforms in democratizing countries. Here the literature is
polarized between two main explanations: the first, based on historical institution-
alism, argues for the importance of the institutional and cultural legacy of the
previous undemocratic regimes in conditioning the adoption of democratic institu-
tional arrangements; while the second perspective emphasizes the impact of self-
interest strategies of political actors on the reform outcomes. These two perspec-
tives will be integrated by considering the role of the EU as an external actor
influencing the paths to reform. These two perspectives are then integrated with
regard to the EU’s role as an external actor in the context of the EU enlargement
process. Then, on reviewing the main approaches developed in the EU studies
literature—in particular the East Enlargement Europeanization (Börzel 2013)—the
chapter underlines that, in order to understand the concrete dynamics of judicial
reforms in the countries under study, it is necessary to go beyond the domestic level
and focus specifically on the interaction between national and international actors.
Finally, the research framework and the methodology applied in the book will be
presented.
The legacies of the past will be particularly discussed in Chap. 2, which
focuses on the Slovenian and Croatian cases to identify the main inheritances of
the past—from both the communist regime and the nationalistic governments of
the 1990s—concerning the functioning of the judiciary. The analysis of the two
cases will underline also how, in Slovenia and Croatia, the political elites were
able gradually to remedy the negative aspects deriving from the past organization
of the judiciary by using the EU as a powerful lever to justify and to introduce
important changes.
The common trait of judicial reforms in these two countries is that, although they
became EU member with a very different timing, the EU-driven reforms in the
judicial sector, especially the structural reforms, have been adopted and
implemented without particular conflict among political and judicial actors. The
path of judicial reform in these two countries shows in particular as they were
particularly rapid and efficient in solving problems related to the institutional
framework and guarantees of judicial independence.
Examination of the interplay between the EU and national actors will be further
developed by presenting two more case studies: Romania (Chap. 3) and Serbia
(Chap. 4). In both countries, the analysis of judicial reforms in the past 10 years
furnishes many examples of how EU conditionality has proved more or less
effective in the different phases of the pre-accession process. It highlights the
xxiv Introduction
importance of the membership perspective credibility,17 as well as of the sanctions

and rewards related to rule adoption. Although the two case studies have many
differences, they both underline the importance of the commitment by national
political actors to EU policies. Here the interplay between “change agents”
(national actors in favour of EU accession) and “veto players” (national actors
opposed to accession or supporting it only for opportunistic purposes)18 is crucial in
explaining the reform outcomes. More generally, the two cases show that the
attitude of political actors toward the judiciary, as well as that of certain judges in
the highest courts, is still influenced by the legacies of the past in relation to the
independence and functioning of the judiciary.
The concluding chapter (Chap. 5) will summarize the main finding of each case
study analysis looking at the EU conditionality policy toward each country
(in particular at the two properties of credibility and determinacy). Then, the
most relevant explanatory assumptions will be reviewed comparatively. In so
doing, the chapter will conduct a comprehensive reflection on two main aspects
(1) the role of the EU in promoting the rule of law and judicial reforms and the
evolution of its policies in the past 10 years in light of the different rounds of
Eastern European enlargement; (2) the peculiarity of the judicial reforms in democ-
ratizing countries and, consequently, of the interests at stake in those processes.
Bologna, Italy Cristina Dallara
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Chapter 1
Judicial Reforms in SEE Democratising
Countries. Towards a Contextualized
Framework for the Analysis
The first aim of this chapter is to review the main theoretical approaches used to
analyse judicial reforms in democratizing countries. Here the literature is polarized
between two main explanations: the first, based on historical institutionalism,
argues for the importance of the institutional and cultural legacy of the previous
undemocratic regimes in conditioning the adoption of democratic institutional
arrangements; while the second perspective emphasizes the self-interested strate-
gies of new political actors and considers the outcome of the reforms as the product
of bargaining among the main political players (Magalhaes et al. 2006). These two
perspectives are then integrated with regard to the EU’s role as an external actor in
the context of the EU enlargement process. Then, on reviewing the main
approaches developed in the EU studies literature—in particular the East Enlarge-
ment Europeanization (Börzel 2011)—the chapter underlines that, in order to
understand the concrete dynamics of judicial reforms in the countries under
study, it is necessary to go beyond the domestic level and focus specifically on
the interaction between national and international actors. The peculiarities of this
interaction in the countries belonging to the SEE will also be evidenced. Finally, the
research framework and the methodology applied in the book will be presented.
1.1 Judicial Reforms in Transition: Main Theoretical

Approaches and Concerns
As already pointed out in the introduction, the academic community has interested
itself in judicial reforms in Central and Eastern Europe only quite recently. Within
post-communist studies at the beginning of the 1990s, the academic community
paid particular attention to legislatives and executives in CEECs (Magalhaes 1999;
Herron and Randazzo 2003), with the exception of a few pioneering works (Elster
1991; Hesse 1993) which mainly dealt with the role and functions of constitutional
courts (Krygier and Czarnota 1999; Sadurski 2003). The judicial branch was almost
C. Dallara, Democracy and Judicial Reforms in South-East Europe, Contributions to 1

Political Science, DOI 10.1007/978-3-319-04420-0_1,
2 1 Judicial Reforms in SEE Democratising Countries. Towards a Contextualized. . .
entirely ignored. External observers initially believed that because the reforms of
the judicial institutions would guarantee respect for the rule of law, they would
proceed quite straightforwardly—as had the transition from authoritarian regimes
to democracy in Southern Europe (Coman and Dallara 2010).
The interest of the academic community has increased when judicial reforms have
come on to the political agendas of the post-communist democracies. These reforms
have attracted the attention of political scientists, sociologists, and jurists with a
previous interest in understanding post-communist transformations (Di Federico
2004). Given that both domestic and international actors considered judicial reforms
in these countries to be difficult and incomplete, the main research questions
addressed have been how to explain policy stability or policy change in this field.
According to Magen and Morlino (2009), the recent experience of Central and
Eastern European countries has highlighted that reform of the judicial system is a
particularly critical policy field. The judicial reform sector can certainly be consid-
ered in every respect an area of high politics in which the distribution of the costs and
benefits deriving from these reforms becomes extremely complex. Given the central
importance of the judicial institutions at a moment of transition, these are modelled
according to the strategies of the dominant political actors, who seek to maximize the
congruence between the new structures and their own interests (Di Federico 2004).
What is at stake is either the maintenance of the status quo or the creation of new
institutional structures. As the expected policy outcomes were still missing before
the accession of these countries, the European Union required acceleration of the
reform process in this field and the establishment of well-functioning judicial
institutions. From the outset, the inherent weakness of the judicial institutions and
political inference in acts of justice have been cited among the most common
problems faced by the former communist countries (Dallara 2007).
Within the comparative judicial studies literature there are three main theoretical
approaches used by scholars to explain judicial reforms in transitional countries
(Magalhaes 1999). The first argues for the importance of the institutional and
cultural legacy of the preceding undemocratic regimes, which conditions the
adoption of democratic institutional arrangements. The second perspective empha-
sizes self-interest strategies among new political actors and considers the outcome
of the reforms to be the product of bargaining among the main political players
(Magalhaes et al. 2006). The third, more recent, theoretical approach integrates the
previous ones with a focus on the role of international actors and external models
(Coman 2013).
With reference to the judicial system, the first theoretical approach—which we
may call the ‘legacy of the past approach’—was originally applied by Toharia
(1975)1 in his work on the magistracy during Franco’s regime in Spain. According
to Toharia, in the context of authoritarian regimes, the judiciary enjoys limited
guarantees of independence. The regime influences the nomination of high level
1
Toharia (1975) also drew inspiration from Linz’s dieas (1964) regarding the characteristics of the
judiciary in authoritarian regimes.
1.1 Judicial Reforms in Transition: Main Theoretical Approaches and Concerns 3
judges, to which it entrusts management of the corps. The judiciary is ‘isolated’ and
its action limited to cases with no political relevance, whereas significant cases are
directly controlled by the executive power (Guarnieri 2003). On the other hand, in
totalitarian regimes,2 the judiciary is entirely controlled by and integrated into the
political system, and its guarantee of independence is strongly reduced. The deci-
sions made by the judiciary must not clash with the regime. The magistracy is
mobilized in support of the regime by integrating judges into the regime’s political
organizations. In this case, guarantees of independence are non-existent, and the
recruitment and career systems are closely controlled (Di Federico 2012). According
to this view, it is to be expected that in post-totalitarian countries—owing to the
profound politicization of those structures and their constant subordination to the
executives during the undemocratic regimes—judicial systems will remain weakly
professionalized and resistant to change. On the other hand, in post-authoritarian
countries, judicial systems are expected to maintain some technical and professional
standards in decision-making, because the traditional criteria for the recruitment and
socialization of judicial personnel coexist with political ones (Dallara 2007). Con-
sequently, democratization of the judiciary is quicker and easier.
Hence, the study of post-communist politics has become a matter of determining
how the past influences the future. The post-communist institutions were not built
on a ‘tabula rasa’, but on the ruins of the communist regimes, and alongside the
pre-communist institutional and constitutional traditions (Coman and Dallara
2010). The first approach adopted in the social sciences therefore argued for the
persistence of the institutional and cultural legacy of the previous undemocratic
regimes, which were viewed as obstacles to the adoption of democratic institutional
arrangements (Crawford and Lijphart 1995). The ‘legacy of the past’ explanation
derives from interpretations developed in seminal studies on democratic transitions
(Morlino 1998; Linz and Stepan 1996; Bartole 1993). Examined in this light is how
and to what extent social, cultural, and institutional legacies from the past regime
influence the outcome of transition and its consolidation. Fragments of the old
socialist order survive. Communist legacies are part of the existential experience of
individuals, groups and classes, and they determine memories, affinities, loyalties
and identities (Tismăneanu 2004). According to this view, the legacy persists in the
organizational structure of the institutions, in the actors’ behaviour, and in the
routines of their actions, impeding or facilitating implementation of the new
institutional arrangements. The judicial system is a sector in which continuity/
discontinuity with the previous regime is strongly manifest (Grilli di Cortona
2006). The ‘past’ has become not only an analytical tool but also a political problem
to be solved, because in Central and Eastern Europe the state’s ‘lustratia’3 still
dominates the public debate.
2
Guarnieri (2003) specifies that when he speaks of ‘totalitarian regimes’ he mainly refers to Nazi
Germany and the communist regimes of the Stalin era.
3
As Kaj and Metzger (2007) define it, “[l]ustration (from Latin lustratio—‘purification by
sacrifice’) is presently being used as the term meaning the ‘purification’ of state organizations
The second explanatory assumption—which emphasizes the self-interest strate-

gies of new political actors and considers the outcome of the reforms to be the result
of struggles among political actors—emerges from the literature on rational choice
theory.4 According to this interpretation, in the post-communist context the new
political actors will seek to exercise as much control as possible over the reform of
judicial institutions in order to prevent the latter from becoming potential dangers to
their political survival. Magalhaes and Guarnieri (2001) termed this framework the
‘new institutions approach’ to judicial reform, suggesting that the institutional
design of judiciaries is the result of struggles among political actors over the
benefits and advantages furnished by different institutional arrangements. As the
authors pointed out, given the central importance of judicial institutions in a time of
transition, they are shaped according to the strategies of the dominant political
actors, which seek to maximise the congruence between the new structures and
their own interests. Political actors are interested in controlling the design of
judicial institutions for two reasons: firstly, the reform of judicial institutions
determines the extent to which political actors can affect the composition of courts,
facilitating or preventing their influence over judicial appointments; secondly, the
rules regarding status and career influence the responsiveness of the judiciary to
political actors. Such norms define the way in which the elite in power can
concretely control the system of punishments and rewards for judicial careers that
can be used to influence judicial behaviour, independence, and the policy prefer-
ences of judges. Control over rules of this kind increases the congruence between
judicial institutions and the interests and preferences of actors (Guarnieri and
Pederzoli 2002). Dominant political actors involved in processes of constitutional
design attempt to create judicial institutions that foster the congruence of the
judiciary with their interests and its responsiveness to their priorities, under the
constraints imposed by their present power and the uncertainty about who will
control the elected branches in the future (Magalhaes and Guarnieri 2001). The
preferences of the parties and their strategies concerning the design of judicial
institutions are also shaped by the degree of uncertainty about electoral results. This
last perspective has been further developed by Ginsburg (2003) in his work on
constitutional courts in new democracies, and by Hirschl (2004), in his study on the
origin of the new constitutionalism. To summarize Ginsburg’s analysis, political
parties in power will be more willing to create strong courts when the political
future is uncertain, because they fear that they may be in the minority and thus
from their ‘sins’ under the communist regime and it is mainly used in the context of public life of
post-communist Central and Eastern Europe”. To define lustration very broadly, it is a measure
barring officials and collaborators of a former regime from positions of public influence in a
country after a revolutionary change of government. Various states adopted various laws relating
to lustration in Central and Eastern Europe, some of which were significantly stricter than others,
and all of which were adopted at different times in the early to mid-1990s.
4
As Magalhaes and Guarnieri (2001) suggest, among the works on democratic transitions that
most clearly subscribed to this approach are Di Palma (1990) and Przeworski (1991). Empirical
applications of this perspective to Eastern Europe can be found in Geddes (1995) and Frye (1997).
1.2 The EU Policy Promoting Judicial Reforms in the Enlargement Framework 5
require extra protection to ensure that the other parties will not be able to abuse
them. In similar vein, Hirschl (2004) specifies that this judicial empowerment is
likely to occur when the judiciary’s public reputation for professionalism and
political impartiality is high, and when judicial appointment is controlled by
hegemonic political elites.
A third explanatory framework, which arose after the other two, focuses on the
role of international actors (Magen et al. 2009) and external models in shaping the
way in which national reforms are carried out. As the bulk of the literature on
democratic transitions stresses (Pridham 1991; Huntington 1991; Whitehead 1996),
international actors have played a pivotal role in the processes of democratization in
Central and Eastern Europe. Moreover, some research, developed mainly in the
field of international relations, points out how external actors, in pushing for
democratization, have also played an unintentional role in socializing actors by
offering models and benchmarks for reform of the institutions and domestic poli-
cies (Checkel 2001). In this regard, attention has recently turned to the role of the
European Union, in the context of eastward EU enlargement, as a source and model
for third countries in reforming their national institutions.
1.2 The EU Policy Promoting Judicial Reforms

in the Enlargement Framework
The adoption of the Copenhagen Criteria, in 19935 may be seen as a turning-point

in the activities by the European Commission (EC) to promote judicial reforms in
third countries. The Copenhagen political criteria for membership stated that
respect for the rule of law is a precondition for opening accession negotiations, as
are democratic institutions, adherence to human rights, and the ability to assume the
economic responsibilities of membership in the Single Market. The 1993 criteria
also established that each country must guarantee adoption of the Acquis
Communitaire, implying the ability to assume the obligations relative to member-
ship, including adherence to the aims of political, economic and monetary union,
and to implement them efficiently and effectively.
The rule of law is, in fact, one of the constitutive values of the European Union
as enshrined in the Treaty of the EU at Article 6. In the decade following estab-
lishment of the Copenhagen criteria, there evolved a large corpus of documentation,
programs and institutions designed to promote rule-of-law reforms in candidate
countries and beyond (Pech 2009). The 1999 Helsinki European Council recalled
that compliance with the political criteria, incorporating the principle of democracy
and rule of law, laid down at the Copenhagen European Council is a prerequisite for
5
Until the beginning of the 1990s, rule-of-law promotion was mainly exercised within the
European Initiative for Democratization and Human Rights (EDHR) framework. See
Piana (2010).
the opening of accession negotiations, and that compliance with all the Copenhagen
criteria is the basis for accession to the Union (Baracani 2009). Thus, there is now a
substantive and identifiable EU rule-of-law acquis (Piana 2009; Magen and
Morlino 2009).
Although the criteria did not originally specify reform of judicial systems as one
of the conditions to fulfil for EU accession, the interpretation given by the EC to the
‘rule of law’ concept has been largely built on the notions of judicial independence,
judicial capacity, fair trial, and efficient functioning of the court system (Piana
2009; Dallara 2005).
‘Rule of law’ is not only a Community law term. In fact, the Treaty of Maastricht
refers to different national concepts, depending on the language, because the
English term does not have an exact translation in other European languages.
‘Rule of law’ coexists in the EU with Etat de droit, Rechtsstaat, stato di diritto
and other national doctrines of member states, which do not have exactly the same
meaning. According to Carothers (2003), in the first phase of the enlargement
process (1998–2004), although the rule-of-law promotion field had rapidly
expanded over the last two decades, it still faced a serious lack of information at
many levels of conception, operation and evaluation. Scholars (Coman 2009; Piana
2010; Smilov 2011) used the bulk of documents and European reports produced in
the context of enlargement policy to determine the meaning of ‘rule of law’ at the
EU level and its implications for judicial reform. The analysis enabled the authors
to identify the political priorities in regard to the rule of law and, on this basis, to
depict the specific policy lines on which the EU had focused its rule-of-law
promotion activity in the various countries. These studies (ibid.) show how imper-
ative it is for the EU to improve the functioning of the judicial system, in particular
the independence of the judiciary and the efficacy of the judicial system as a whole.
In a more general sense, the EU rule-of-law promotion strategy includes other
important aspects: a particular concern is improvement of the administrative capac-
ity and civil service in fighting corruption, organized crime, and money laundering
(Baracani and Dallara 2005). The EU also exhorts CEE countries to reorganize their
police forces by introducing codes of conduct for agents, and it highlights problems
relative to the right to a fair trial and access to justice. Hence, in light of the
concept’s practical application, the EU’s rule of law seems to have a broad meaning
that extends beyond the national doctrines just mentioned (Etat de droit,
Rechtsstaat, stato di diritto). It includes the existence of independent and functional
constitutional and judicial authorities, an accountable law enforcement structure, a
well-trained and disciplined police force, and an adequate corpus juris able to
address crucial domestic problems, such as corruption, organized crime, money
laundering, and to ensure the proper application of community law (Pech 2009;
Guarnieri and Piana 2011).
It is worth mentioning that the EU strategy of rule-of-law promotion was largely
constructed together with other international organizations working on rule-of-law
assistance. Among them is the Council of Europe, which may be the EU’s ‘partner
for prestige’ (Piana 2010) in identifying standards and criteria for judicial reforms
in Eastern Europe countries. The first problem faced by the European Commission
was the lack of common and uniform structures for the organization of the judiciary
in Europe. Each member state had different institutional frameworks related to
balance of powers, judicial review and, more generally, the organization of judicial
systems (Guarnieri and Pederzoli 2002). This topic will not be further developed
here because other authors have focused specifically on it.6 Nevertheless, it should
be emphasized that, although the EU had the formal asymmetric power to force
candidate and potential candidate countries to adopt its recommendations, the
content of these recommendations and the details of the reforms suggested (the
so-called ‘Priorities to be fulfilled’7) were defined together with other international
actors, especially as regards judicial reforms. The World Bank, the American Bar
Association, the Open Society Institute of the Soros Foundation, and (as mentioned)
the Council of Europe are the most prominent of these other actors (Coman 2013)
because they were already working in the field of judicial reform assistance before
the accession process began. The European Commission recommended judiciaries
to become self-governing entities, and called for non-interference by other branches
of power in the judiciary, the independent training of judges, an independent system
of appointment, and, more technically, systems and programs to modernize the
judicial administration through the use of ICT and management tools (Piana 2010;
Kochenov 2004).
1.2.1 The EU Political Conditionality and Socialization
In order to understand the logic of EU democracy and rule of law promotion

activities in candidate and potential countries, it is necessary to focus on a key
element of the enlargement process: the political conditionality mechanism. This is
the main channel through which EU-driven normative contents have penetrated the
political systems of candidate countries. Conditionality has always been part of
EC/EU policies in one way or another, and it is applied to member states, candi-
dates or third countries. Its significance increased in the 1980s, and particularly in
the 1990s, with the practice of international organizations to set political and
economic conditions (Magen and Morlino 2009). Post-communist Central and
East European Countries (CEECs) thus became the first targets of a highly demand-
ing political, economic, and social EU conditionality linked to the process of
transition towards democracy and a market economy. As already mentioned,
since 1993, EU conditionality has been firmly embedded in the enlargement
framework. The Copenhagen criteria have been widely accepted as the benchmarks
6
Piana (2010) has extensively developed this argument by showing how the various organizations
contributed to defining priorities and details in relation to reform of the judiciaries.
7
In its official documents monitoring the progress of countries towards accession, the EU defined a
set of “Priorities” that each country must fulfill each year in order to continue with the accession
process. See the next section.
with which to assess candidates’ progress towards the EU, giving the EU powerful
leverage to influence the outcome of reform efforts in the individual candidate
countries (Anastasakis and Bechev 2003). Basically, the conditionality consists of
external pressure to generate deliberate political evolution of candidate countries.
The essence of conditionality lies in the strongly binding commitments undertaken
by countries, and its efficiency depends on the will and the capacity of countries to
fulfil these commitments (Magen and Morlino 2009). Since the beginning of
negotiations, the most important incentive for adoption of the Copenhagen criteria
has been the hope that becoming a member of the Union will bring the economic
and political advantages associated with membership. The literature on EU condi-
tionality in the enlargement process is far-reaching (Vachudova 2005; Grabbe
2002; Börzel and Risse 2004; Schimmelfennig and Sedelmeier 2005).8 Only the
main aspects will be summarized here. According to EU studies scholars, EU
conditionality is essentially based on the ‘carrot and stick approach’ whereby
substantial funds and support are provided along with the ultimate prize of EU
membership. Simultaneously, strict conditions are set, and progress towards meet-
ing them is critically evaluated on a regular basis (Grabbe 1999; Kochenov 2004).
This mechanism has also been defined in the literature as ‘reinforcing by rewards’
(Schimmelfennig and Sedelmeier 2005). According to this strategy, as
Schimmelfennig et al. (2003) pointed out, an international organization reacts to
the fulfilment or non-fulfilment of its conditions by granting or withholding
rewards. The core of EU conditionality is thus the logic of cost-benefit analysis
whereby changes are reactions to the material and social benefits offered by the EU
(Noutcheva 2012). As rational subjects, national actors change their policies and
behaviours if the rewards offered by the EU are higher than the cost of compliance
with its requirements (ibid.). Grabbe (1999) also specified that the effectiveness of
EU conditionality in forcing applicants to conform to its demands is constrained by
the gap between the conditions and the rewards: conditionality is an effective tool
when it comes to persuading countries to change particular practices. However, the
EU’s main incentive for candidate countries comes in one big step at the end of a
very long process, giving applicants the sense that there is time to remedy defi-
ciencies (Grabbe 2002).
Together with the political conditionality, the EU has used a large number of
economic, legal, bureaucratic, and cultural instruments to promote implementation
of the Copenhagen criteria in the CEECs. Another important instrument in the
pre-accession policy is socialisation. According to Kelley (2004), socialisation is a
process whereby actors generate behavioural changes by creating reputational
pressure through shaming, persuasion, and other efforts to socialise state actors.
8
Many authors have analyzed the conditionality mechanism applied to the Central and Eastern
Europe countries, defining it as a specific and tailored mechanism built around the eastward
enlargement process. Different terms and definitions have been provided, such as accession
conditionality (Börzel and Risse 2004) membership conditionality (Kelley 2004), EU enlargement
conditionality (Schimmelfennig and Sedelmeier 2004; Dimitrova 2002) and so on. See also
Dallara (2010), p. 119.
During the enlargement process, the EU increasingly used socialisation efforts

together with conditionality. The underlying logic is ‘appropriateness’ (March
and Olsen 1989), by which is meant that domestic changes take place due to
persuasion and internalization of EU-driven norms. Socialization mainly took
place through personal exchanges and exposure to the EU norms and models. As
Checkel (2001) points out, the EU, thanks to its dense institutional domain, is
particularly successful as a socializing agency (Noutcheva 2012). In fact, EU
officials travelled intensively to candidate countries to negotiate, but also to stim-
ulate domestic debates on issues such as democracy, minority and human rights.
The main instruments of socialisation were the financial and technical EU assis-
tance programmes. Among these, the PHARE programme provided support for
institution building and infrastructural reform in order to ensure compliance with
the acquis, and investments in economic and social cohesion. In 1998, in the
context of PHARE, the EU began the implementation of Twinning projects that
became the main tools for institution and capacity building in candidate countries.
Twinning consists in the provision of technical support by experts from the public
administrations of the EU member states. From 1998 to 2004, 62 twinning projects
were organized in the field of judicial reforms (Piana 2009; European Commission
1998). In this policy sector, twinning programmes have also been organized to
off-set the EU’s inability to diffuse a common framework for guarantees of judicial
independence or organization of the judiciary. The twinning programmes became
the main instrument with which to translate EU conditionality into concrete policy
lines (Papadimitriou 2002). Civil servant and judges from the old member states
became the main source of inspiration for political elites in candidate countries to
reform their judicial systems (Coman 2009, 2013). Judicial reforms in each country
were thus also influenced by the national traditions of the countries from which
experts came. Candidates also participated in other multi-country and horizontal
programmes, such as TAIEX9 and SIGMA.10 These were the main features of the
rule-of-law conditionality applied to the first group of candidate countries that
entered in 2004, among them Slovenia.
As to the second group (Romania and Bulgaria), an important change was made
to the ‘rule of law’ conditionality in 2005 when the European Council, after having
postponed the accession of Romania and Bulgaria, decided to introduce the ‘post-
ponement clause’ establishing the possibility to delay Bulgaria’s and/or Romania’s
entry for a further year if judicial and anti-corruption reforms were not completed
(Noutcheva 2006). This was an important step because it was the first official signal
of the EC’s difficulties and problems in monitoring judicial and anti-corruption
reforms. As a consequence, the conditionality towards the two countries became
more rigorous in this respect, although the result was only a rush marathon in
9
Technical Assistance Information Exchange Office.
10
Support for Improvement in Governance and Management joint initiative of the OECD and the
European Union, principally financed by the EU.
adopting the required legislation ‘on paper’, and poor progress in implementation of
the reforms (Pridham 2007).
The experience of Romania and Bulgaria, and the debate that it generated both at
EU level and within the international academic community, induced the EU to
introduce some changes and conditions. This policy change was facilitated by the
‘entry into the scene’ of the new group of candidate and potential candidate
countries belonging to the Western Balkans (WB) region. After 2005 the
re-definition of the EU Strategy towards the WB enabled the EC to make important
technical changes to the rule-of-law requirements and the monitoring of judicial
reforms.
1.2.2 The EU and the ‘Potential Candidates’: Any Lessons

Learned?
As mentioned in the Introduction to the book, a specific policy line was then
established for the countries of the Western Balkans region11: the Stabilisation
and Association Process (SAP) launched in 1999. The main reasons for the devel-
opment of this policy were firstly recognition that the main motivator for reform in
these countries would be a relationship with the EU based on a credible prospect of
membership once the relevant conditions had been met; secondly, that the relation-
ship with the EU should be based on a more flexible approach which, although
anchored to a common set of political and economic conditions, would allow each
country to move ahead at its own pace. Finally, the EU clearly understood the need
for the countries to establish bilateral relationships among themselves which would
allow greater economic and political stability in the region (Bechev and Andreev
2005; Elbasani 2010). The Zagreb Summit of 2000 set the seal on the SAP and
offered the prospect of accession on the basis of the Treaty on European Union
(TEU). The SAP was initially conceived as a specific preliminary path towards EU
membership to be pursued by the countries of the Balkans area (Dallara 2010). The
Feira European Council of June 2000 acknowledged that countries participating in
the SAP were potential candidates for EU membership. In June 2003, with the
adoption of the Thessaloniki Agenda, the Council decided to further strengthen the
SAP with elements from the enlargement process.12 The cornerstone of the process
was a Stabilisation and Association Agreement (SAA) representing the official
contractual relationship between the EU and those countries and establishing
mutual rights and obligations. The SAA, including the progressive instrument of
conditionality, focused on respect for key democratic principles and the core
elements of the EU single market. It was a precondition for obtaining the status
11
The countries originally included were Albania, Bosnia-Herzegovina, Croatia, FYROM and, the
former Serbia-Montenegro.
12
16 June 2003: Western Balkans—GAER Council Conclusions.
of candidate country for EU membership. Among the requirements that these

countries had to fulfil before applying for EU membership were cooperation with
ICTY and regional cooperation. These conditions were, and are, the most important
and difficult ones to fulfil for the majority of the Balkans countries (Elbasani 2010).
For this reason, the accession path for the countries of the region has been longer
and harder with respect to the CEECs. From 2005 onwards, the EU gradually
unified the instruments used in the enlargement process under a common frame-
work adopting the same type of monitoring reports and the same type of documents
for all the candidate and potential candidate countries. The EU’s commitment to
helping the region along that path was reinforced by the economic assistance
distributed through the CARDS (Community Assistance for Reconstruction, Devel-
opment and Stabilisation) programme. Moreover, the twinning instrument was
extended to all SAP countries. In spite of this specific policy towards the Western
Balkans, the institutional relation between the EU and the countries of the region is
not yet well defined. To date, Croatia is the only country that has significantly
moved forward in the EU accession process; since 2010 also Macedonia, Serbia,
Montenegro and Albania has made some progress in reforms and approximation to
EU standards, but they are not yet definitive; while in Bosnia and, in particular in
Kosovo, some major challenges still need to be addressed. In 2001, Chris Patten, at
that time EU Commissioner for External Relations described the situation as
follows: “in the Balkans, like the old English floral dance, it is often a case of
two steps forward, one step back”.13 Moreover, it seems that since 2005 (in relation
to the ‘identity crisis’ of the EU) the European perspective for the countries of this
region has been delayed.
Many authors have emphasized the ambiguity of the EU’s approach and the low
credibility of its action towards the countries in the region (Börzel 2011; Noutcheva
2012; Elbasani 2013). Other authors have emphasized how the EU’s approach to
the region was only half-effective in its instruments for stabilization, democratiza-
tion and eventual integration (Pridham 2007; Turkes and Gokgoz 2006). It some-
times produced an overlap, or a clash, between the security/peace promotion and
the democracy promotion agendas (Bechev 2004; Marčeta 2010; Petrović 2010).
The ‘one fits all’ approach to EU enlargement (Börzel and Risse 2004) was
seemingly unaware that, in those countries, there was not only a transition from
communism to democracy (similarly to CEE), but also a transition within an
ethnically divided society, a post-conflict economy, and countries with limited
statehood (Stick 2009). For this reasons, the same approach produced different
and divergent results. The overall reaction of those countries to the EU requests can
be characterized as patchy compliance, reversal, delays and partial reforms. More-
over, as some recent and comprehensive studies have emphasized (Börzel 2012;
Noutcheva 2012; Elbasani 2013), resistance against, and occasional rejection of,
the EU conditions was due to the perceived non-legitimacy of the EU’s demands.
13
SPEECH/01/338, The Rt Hon Chris Patten, Commissioner for External Relations, EU strategy
in the Balkans International Crisis Group, Brussels, 10 July 2001 (Turkes and Gokgoz 2006).
The specificity of the EU conditionality in relation to state sovereignty and

statehood-linked issues influenced the ability, or better the willingness, of the
domestic actors to accomplish the EU-driven reforms. This important aspect will
be developed further in the next pages.
A turning point in improvement of the new EU Strategy towards the new group
of countries occurred with the beginning of negotiations with Croatia. As Nechev
(2013) describes, lessons learned from previous waves of enlargement prompted
the introduction of a number of innovations and principles governing the new
negotiations. The Aquis Communitaire was organized into 35 subject-related chap-
ters. In regard to the rule of law, the former justice and home affairs chapter was
divided into two more specific chapters on the judiciary and fundamental rights
(Chap. 23), and justice, freedom and security (Chap. 24). Thus, judicial reform
topics were no longer assessed under the generic umbrella of the ‘democracy and
rule of law criteria’ but, instead, they were specifically evaluated in a dedicated
chapter subject to the negotiation system. Moreover, another mechanism was
introduced to improve the negotiation process: the benchmarking system. Intro-
duced in order to assist the accession country in meeting the criteria, the
benchmarking methodology was a novelty in assessing a country’s preparedness
before opening and closing a negotiating chapter (ibid.). These were the main
novelties related to the technical aspects of the EU Strategy of rule-of-law promo-
tion. In term of contents, although the rule-of-law requirements continued to be
mainly built using a description-based approach,14 rather than an analytically based
definition (Nicolaidis and Kleinfeld 2012), the EU’s attention increasingly focused
on more concrete aspects of the functioning of judicial systems, such as impartial-
ity, the quality of the service, and efficiency in terms of timing (Piana 2010). The
increasing collaboration with the CoE, especially in relation to new candidate
countries such as Croatia and Serbia, helped the EC to more closely target require-
ments and assistance concerning judicial reforms.
In spite of these changes in the EU Strategy, the reform outcomes in Western
Balkans were diversified and only partially compliant with the EU requirements.
Although Croatia was able, albeit with discontinuity and some enduring problems,
to close also the chapter related to the judiciary, many concerns remained in relation
to the other countries of the region, and especially towards Serbia, in which political
elites continued to delay and to oppose the EU-driven judicial reform (Dallara
2007, 2010).
Starting from Romania’s and Bulgaria’s accession, and later with the Western
Balkans pre-accession process, problems and difficulties related to implementation
of the EU’s rule-of-law agenda in the national domains also attracted the attention
of the political science academic community, which, especially through European-
ization research, started to identify explanatory factors that could account for the
EU’s rule-of-law dilemma (Nicolaidis and Kleinfeld 2012; Coman 2013). This
14
Kleinfeld (2005) defined the early stages of the EU’s rule-of-law promotion requirements as the
“laundry list” of the standards to fulfill.
dilemma can be summarized as an increasing awareness of the importance of the

rule-of-law reforms for the concrete functioning of the Union and, at the same time,
of the large body of evidence on failure in implementation of those policies due to
growing opposition and challenging interaction with national actors.
In terms of financial and technical assistance, in 2007 the EU decided to unify all
the programs existing in the period 2000–2006 (namely PHARE and CARDS) into
a single framework, the Instrument for Pre-Accession Assistance (IPA), which was
the financial instrument for the European Union (EU) pre-accession process for the
period 2007–2013.15 Pre-accession assistance is now regulated within the same
framework for both candidate and potential candidate countries. Throughout the
process leading to accession, the IPA funds are intended to enhance the capacities
of countries and help the implementation of reforms (Baracani 2009). In 2003, an
additional and specific policy program, the European Neighborhood Policy (ENP),
was created to share the economic and political benefits of enlargement with the
neighboring countries in Eastern Europe, the Southern Mediterranean, and the
Southern Caucasus for which accession to the EU was not a prospect (Bechev
and Nicolaidis 2007). Figure 1.1 graphically summarizes the three external policy
lines towards third countries.
1.2.3 Monitoring Countries Progress Towards the Accession
Before setting out the research framework of this book, it may be useful to
summarize the official diplomatic steps that each country has to follow to start
the EU accession process. It is up to the government of a country to apply for EU
membership. Member States of the EU then decide unanimously to consider the
application. On the request of the Member States, the European Commission
assesses whether the country meets the Copenhagen criteria and may recommend
the opening of accession negotiations at the Council of the European Union. If all
the Member States agree, an applicant country can be granted ‘candidate status’
(European Commission 2011). As explained, for the countries of the Balkan region,
application for EU membership can be considered only at the end of the SAP, which
includes specific provisions and detailed priorities tailored to the needs of the
Balkan countries (Table 1.1).
If a country fulfils the Copenhagen criteria and the Member States agree, it
becomes an official candidate for membership; but this does not necessarily mean
that formal negotiations have been opened. Accession negotiations concern the
candidate’s ability to assume the obligations of membership. Each candidate
country must adopt and implement all EU legislation currently in force before
receiving the ‘green light’ to join. To facilitate the negotiations, the body of EU law
15
For more details about the financial assistance see http://ec.europa.eu/regional_policy/thefunds/
ipa/works_en.cfm
Fig. 1.1 EU external

policies towards third
countries
EU
PRE-
ACCESSION
SAP
ENP
Table 1.1 Successive enlargements and status of the countries from 2007 to 2013
New members 2004
Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovakia and
Slovenia
New members 2007
Romania and Bulgaria
New member 2013
Croatia
Candidate countries
Serbia, Montenegro, former Yugoslav Republic of Macedonia, Turkey and Iceland
Potential candidates
Albania, Bosnia-Herzegovina and Kosovo
is divided into 35 ‘chapters’, each corresponding to a policy area. The first step,
during which the EC identifies areas in need of alignment in the legislation,
institutions or practices of a candidate country, is called ‘screening’ (European
Commission 2011).
Before negotiations can start, the candidate country must submit its position and
the EU must adopt a common position. The EC carries out a detailed examination of
each policy field, together with the candidate country, to determine how well the
country is prepared. The conclusion of this screening process is a recommendation
of the Commission either to open negotiations directly or to require that certain
other conditions should first be met. Negotiations are conducted between the EU
Member States and each individual candidate country, and the speed depends on
each country’s progress in meeting the requirements. Candidates consequently have
an incentive to implement the necessary reforms rapidly. Some of these reforms
require considerable and sometimes difficult transformations of a country’s
political and economic structures. It usually takes several years for a country to be
able to ‘close’ all of these chapters. When the negotiations and accompanying
reforms have been completed, the country can join the EU on signing the Accession
Treaty. Once the Accession Treaty has been signed, the candidate country becomes
an ‘Acceding State’ and is entitled to certain provisional privileges until it becomes
a EU Member State.16 To help countries prepare for future membership, the EU has
designed a pre-accession strategy. Key elements of this strategy include agreements
that set out rights and obligations, as well as special cooperation mechanisms like
the Accession or European Partnerships outlining concrete reform goals to be
achieved by the candidates and potential candidates (Baracani 2009). The first
Accession Partnerships were decided in March 1998 in order to set out in a single
framework the priority areas for further work towards membership of the European
Union, the financial means available to help the country to implement these
priorities, and the conditions applying to that assistance. The main priority areas
identified for each candidate state relate to its ability to assume the obligations of
meeting the Copenhagen criteria, and they are divided between short-term and
medium-term priorities (Baracani and Dallara 2005).
In order to understand how pre-accession policy has concretely functioned in the
past 15 years, it is necessary to focus also on the monitoring mechanism that the EC
has adopted to assess the compliance of candidate and potential candidate countries
with the EU requirements. The Commission keeps the Council and the European
Parliament informed about the candidate countries’ progress, through annual strat-
egy papers and individual country progress reports. It also monitors the fulfilment
of requirements and progress in respecting undertakings. The so-called progress
reports provide valuable feedback to the countries and signal the main areas where
efforts are still required. Since 1998, in fact, the EC has monitored the compliance
of all the candidate and potential candidate countries with annual progress reports
(Baracani and Dallara 2005). This means that the Commission reports every year on
the progress made by each of the candidate countries in its preparations for
membership, focusing on political and economic criteria for membership and on
the ability to assume the obligations of membership.
In relation to the judicial reforms area, the progress of each country is evaluated
in three distinct sections: at the beginning of the Reports, under the topic ‘Political
criteria’ within a section titled ‘Judicial system’ that summarizes the general
situation of the judicial system in the year examined; then more specific aspects
are assessed in two particular negotiating Chaps. 23 and 24, respectively titled 23.
Judiciary and fundamental rights and 24. Justice, freedom and security. It is
significant that originally, until the accession of Romania and Bulgaria, the Acquis
consisted of 31 chapters. For the negotiations with Croatia (acceding country),
Iceland, Turkey and Montenegro (and in the future with Macedonia and Serbia), the
16
As an acceding state, it can comment on draft EU proposals, communications, recommendations
or initiatives, and it acquires “active observer status” on EU bodies and agencies. Once the
ratification process is complete, the Accession Treaty enters into force on its scheduled date.
Acquis was split into 35 chapters, with the purpose of dividing the most difficult
ones into separate chapters for easier negotiation. This was the case of the chapter
on the judicial system. Until the 2007 accessions, judicial reforms were assessed
only under the ‘political criteria’ section and under Chap. 24; now, instead, another
specific Chapter is devoted to Judiciary, and fundamental rights have to be
negotiated.
1.3 Beyond the Domestic Level: The Interaction Between

International and National Actors
After 2000, theoretical frameworks used to analyse judicial reforms in post-

communist countries rapidly evolved, first in light of the first steps of the EU
enlargement process, and then in light of new research within the Europeanization
literature on new countries, such as Romania, Bulgaria and the Western Balkans.
The aim of this section is to show the strengths and weaknesses of existing
assumptions by examining the impact of the EU in influencing judicial reforms, and
to evidence which theoretical explanations account better for different trajectories
and paths of reform at national levels.
The concept of Europeanization was introduced into political science at the end
of the 1990s in order to assess the impact of European integration on the politics,
policies, and polities of the member states,17 Radaelli (2000) defines Europeaniza-
tion as a “process of construction, diffusion and institutionalization of rules, pro-
cedures, policy paradigms and shared beliefs and norms which are first defined and
consolidated in the making of EU public policy and politics and then incorporated
in the logic of domestic discourses, identities, political structures and public
policies” (Radaelli 2000, p. 28). Most of the literature on post-communist countries
has used the Europeanization framework to highlight patterns of policy transfer, the
scale of domestic adaptation, as well as the institutional and administrative capa-
bility of the candidate countries to cope with the EU requirements for enlargement.
The main theoretical assumption of these studies was as follows: the EU influences
the development of governance in Central and Eastern Europe through its accession
process in ways that go well beyond its official competences in the current member
states (Grabbe 2002). Theoretically, Europeanization implies a ‘misfit’ between the
EU and the domestic level, which acts as “a necessary but not sufficient condition
for expecting change” (Börzel and Risse 2000). The causal chain of Europeaniza-
tion therefore starts with adaptation pressure created by the incompatibility
between the EU’s policies and policies at the domestic level. The first academic
contributions on Europeanization and conditionality hypothesized that there are
clear causal relationships in the use of conditionality to ensure policy or
17
Seminal works on Europeanization are those of Morlino (1999), Radaelli (2000), (Cowles
et al. 2001) and Featherstone and Radaelli (2003).
1.3 Beyond the Domestic Level: The Interaction Between International. . . 17
institutional outcomes (Hughes et al. 2004). These theoretical considerations are at

the core of the first research design on Europeanization aimed at assessing the
impact of European integration on the politics, policies, and polities of the member
states in general, and on the judicial institutional designs and the politics of judicial
governance in particular.
1.3.1 The Enlargement (East) Europeanization
Europeanization rapidly became one of the main conceptual tools used to explain
the processes of change in CEE candidate countries in reaction to the EU condi-
tionality pressure (Papadimitriou 2002; Noutcheva 2012). Although the first studies
on EU conditionality in the enlargement process considered the importance of
facilitating factors at national level,18 they mainly perceived the relation between
the EU and the country as a top-down process in which the requirements suggested
by the EU are (quasi)automatically implemented in the name of conditionality
(Schimmelfennig and Sedelmeier 2006). For example, the bulk of studies on EU
conditionality and on the ‘rule of law’ dimensions adopted a one-dimensional,
or better top-down, approach in analyzing judicial reforms (Coman and De
Waele 2007).
An important finding of this first generation of studies, later on renamed as East
Europeanization (Börzel 2013), was that EU conditionality is not monolithic in the
sense of having the same powers and the same effectiveness towards all the
countries involved in EU enlargement. In this regard, Schimmelfennig and
Sedelmeier (2005) emphasized that there are some properties of the EU condition-
ality that can explain why the transfer of EU rules was more effective and rapid in
some situations/countries than in others. These properties concern the credibility of
the membership perspective and the determinacy of the EU’s requirements. In this
respect, on analysing the pre-accession process of the first group of candidates,
Schimmelfennig and Sedelmeier evidenced that in the majority of countries, the
adoption of EU-driven rules increased in the final phases of the process just before
the negotiations are closed. Thus, the more a country advances, with positive
assessments, the more the credibility of the membership promise increases, with a
consequent positive feedback effect in inducing the country to go ahead with the
reforms required. The opening of accession negotiations with (and the subsequent
accession of) a first group of candidate countries increased the credibility of
rewards for the remaining candidates because it demonstrated that the EU was
serious about enlargement. Similarly, the low determinacy of EU recommendations
weakened the likelihood of rule adoption. ‘Determinacy’ refers to both the clarity
18
Some authors (Hughes et al. 2004) emphasized that Europeanization also requires the existence
at the national level of “some facilitating factors—be it actors, be it institutions—responding
positively to the EU external pressures”.
and the formality of the recommendations (Schimmelfennig and Sedelmeier 2005).

If the behavioral implications of a rule are clear, its determinacy will be higher.
According to the authors, “determinacy has an informational value. It helps the
target governments to know exactly what they have to do to get the rewards.”
Determinacy also enhances the credibility of conditionality. It is a signal to the
target countries that they cannot avoid adopting a EU rule by manipulating the
interpretation of what constitutes compliance to their advantage. At the same time,
however, it binds the EU. If a condition is determinate, it becomes more difficult for
the EU to claim unjustly that it has not been fulfilled and to withhold the reward
(ibid.).
Also for the other groups of countries involved in enlargement, these consider-
ations concerning the credibility of EU membership and the determinacy/clarity of
the EU-driven rules were particularly important in determining the reaction of
domestic actors to the EU recommendations. For this reason, when the four case
studies are analysed, the credibility and determinacy of the EU conditionality will
be considered. In all the cases studied, the power of the EU’s conditionality to
influence judicial reforms differed according to the accession stage (pre-accession,
accession, or post-accession). It was in particular in the transition from the
pre-accession to the accession stage that the power of the EU was greatest.
Although the first generation of studies were still mainly focused on the EU
action, as Coman (2013) suggests, it was throughout the results of this research that
the top-down Europeanization approach was partially denied. In fact, accounts of
the poor records of reforms, especially in Romania and Bulgaria, showed that the
EU’s capacity to influence the institutional reforms was strongly mediated by
various national domestic factors in each country. Whilst EU conditionality was
quite effective in promoting the adoption of EU-driven rules especially in the years
just before accession, the implementation of those rules was instead a longer and
more difficult process. In some cases, especially those of Romania and Serbia,
adoption of the EU’s recommendations remained on paper without effective imple-
mentation of the reforms (Dallara 2007).
Magen and Morlino (2009) analysed the results of the EU’s rule-of-law promo-
tion towards candidate and potential candidate countries from 2005 to 2008. They
also focused on the domestic factors which they considered necessary to consider
when assessing the influence of the EU. According to Magen and Morlino, these
factors are broadly related to decision-making by domestic elites, the distribution of
power among domestic actors and their interests (in particular the presence of
change agents and/or veto players), the political momentum and possible political
fluidity, the presence of alternatives to the political regime promoted by the EU
and/or the presence of alternative directions in foreign policy, and last, but not least,
the existence of an organizational, institutional and administrative setting suitable
for adoption of the changes suggested by the EU. In the countries analysed by
Magen and Morlino (2009),19 two specific factors were crucial in determining the
19
The study by Magen and Morlino (2009) focuses on four case studies: Romania, Serbia, Turkey
and Ukraine.
1.3 Beyond the Domestic Level: The Interaction Between International. . . 19
rule-of-law reform outputs (1) The presence of change agents or ‘norm entrepre-
neurs’ (Finnemore and Sikkink 1998) within the judicial policy field. Change
agents may be defined as “domestic actors that mobilize to pressure decision-
makers to adopt democratic rules; they also engage domestic decision-makers in
processes of persuasion and social-learning to redefine their interests and identities”
(Magen and Morlino 2009). (2) The existence of veto players (opponents to
reforms) with significant power in the decision-making process relative to judicial
reforms. Veto players are domestic actors whose agreement is necessary for a
change in the status quo (Tsebelis 2002). The existence of veto players is a key
factor in drawing up the cost and benefit balance relative to the adoption of EU
rules. According to a neo-institutional approach (March and Olsen 1989), domestic
actors respond to the EU’s recommendations also according to their calculations of
the costs and benefits of adopting such rules. Accounting for the presence and
powers of veto players among national political and judicial actors yields better
understanding of what hampered adaptation to the EU’s demands in cases of
difficult reforms, such as Romania and Serbia. Moreover, focusing on the existence
of change agents and their links with the EU allows better contextualization of the
EU’s capacity to empower pro-reform domestic actors (Magen and Morlino 2009;
Noutcheva 2012). These aspects will be considered in our case studies.
Moreover, the analysis of behaviour by political and judicial actors affords better
understanding of situations of conflict around the EU’s demands, and more specif-
ically of conflicting interactions in the high-politics field, such as judicial reforms.
As mentioned in the introduction, the EU requirements need to be translated into
policies and reforms, and this operation is performed in the domestic arena by
national actors (Grabbe 2002). The presence of national political actors not in
favour of EU accession, or which do not agree on some of the EU’s requirements,
generates conflicting interactions in which adoption of the EU-driven reforms
becomes long and difficult (Bieber and Ristić 2012; Coman 2013). Moreover, it
is when tensions at the domestic level between judicial and political actors increase
that EU conditionality has been instrumentally used to settle domestic disputes
about policy solutions (Melone 1996; Coman 2013). It is worth mentioning that
when the EU conditionality has been used by domestic actors instrumentally to
solve political disputes or to obtain international rewards, the reforms have rarely
gone beyond formal adoption. When the judicial reforms trajectories are analysed
in our four case studies, therefore, the existence of conflicting positions on EU
accession will be considered. This will emerge from the case studies as one of the
most relevant factor. The four cases could be classified as: two example of absence
of conflict, although with some differences, on the EU membership and related
judicial reforms requirements (Slovenia and Croatia); one example of domestic
actors “formal” convergence on EU accession (Romania), but high conflict on
judicial reforms specific requirements; and one example of huge conflict on the
EU membership perspective and all the normative related requirements (Serbia).
1.3.2 Towards a Contextualized Domestic Influence
The limitations of the one-dimensional top-down approach to EU conditionality

became manifest when, after the accession of Romania and Bulgaria in 2007, the
Western Balkans countries entered the scene as the official group of candidates.
As Elbasani (2013) states, when the EU expanded its concept of enlargement
also to the Balkans, it generated high expectations that the enlargement strategy
would work in the same way as it had in the CEECs. Thus, Europeanization and
enlargement conditionality became the dominant approaches also in study of
EU-led reform in this region. However, the first results evidenced that the Western
Balkan countries shared poor records of reforms and the widespread presence of
unfavorable domestic conditions which challenged the EU’s transformative power
(Börzel and Risse 2012; Elbasani 2013).
Moreover, some recent and comprehensive studies (Börzel 2013; Noutcheva
2012) have emphasized that in those countries, unlike the CEECs, public support
for EU norms and values and EU membership was more fragile. On shifting to a
more constructive approach, these studies pointed out that the resistance to, and
occasional rejection of, the EU conditions in WB was due to the perceived
non-legitimacy of the EU’s demands.
Börzel (2013), in particular, underlines that the majority of the WB countries,
with the some exception of Croatia, are characterized by ‘limited stateness’,
meaning the lack of adequate capacity to make and enforce collectively binding
rules that can also partially affect sovereignty and territorial issues. In countries
where borders are still contested and ethnic identities still clash, also the adoption of
policies not directly linked with statehood issues such as, for example, judicial
reforms, are perceived as extremely costly or as intrusions into national sovereignty
matters (ibid.). Problems related to state sovereignty and statehood-linked issues
have influenced the capacity, or better the willingness, of domestic actors to
accomplish the EU-driven reforms. For this reason, in many cases rule adoption
has been ‘selective’ (implemented only in relation to those priorities that did not
imply an ‘intrusion’ into national sovereignty), and they have often taken the form
of fake compliance (Noutcheva 2012), with reforms only on paper without inter-
nalization and concrete institutional changes (Mungiu-Pippidi 2005).
Elbasani (2013), defines limited stateness as due to “deep structures that con-
strain capacity of human action to take or to execute the EU rules and thus limit the
scope of Europeanization” (2013, p. 6). These structural constraints also affect the
level of state-capacity (the good quality and functioning of the state institutions)
which becomes a key factor when the reforms have to be implemented (Piana
2010). However, structural constraints should be considered as parameters present
in different forms and with different intensities, not as given insuperable obstacles
(Elbasani 2013).
The structural constraints expressing limited stateness are directly linked and
still influenced by the heritage of the past, in terms of both the previous political
regime and ethnic heterogeneity (Boduszynski 2010). In regard to judicial reforms,
1.4 Research Framework and Methodology 21
the legacies of the past state organization directly influence both the ‘ideal-type’ of
judicial system conceived by political and judicial actors and the practical capacity
of judges to apply new routines and practices. Whilst such legacies were more
easily overcome in the case of Croatia and Slovenia, owing to the lesser influence of
the regime’s totalitarian features, this was not the case of Romania and Serbia, in
which domestic actors continued to be strictly linked with past frameworks of the
organization of the judiciary and balance of powers. The legacies of the past regime
in the functioning of the judiciary, and thus their influence in terms of limited
stateness, will be analysed in the four case studies.
To sum up, the first generation of studies on Europeanization (1995–2005)
contributed to better conceptualization of the fact that EU conditionality may be
differently influential depending on the credibility of the membership perspective
and the clarity of the recommendations made to each country. Thus, the idea of a
differential impact in each national context has been ascertained.
Other studies, developed since 2005, although they still focus mainly on EU
conditionality, have emphasized that analysis of national political behaviour is
fundamental for understanding how the EU-driven reforms were more easily and
rapidly implemented in some countries than in others. Thus, many studies (Magen
and Morlino 2009; Coman 2009; Piana 2010; Dallara 2010) have considered the
existence of veto players (and respective powers) in the national arena and
the presence of change agents and their link with the EU, especially in terms of
the EU’s empowerment of domestic change agents.
A new stream of Europeanization studies emerged after 2010, when specific
research on the transformative power of the EU focused on the Western Balkans,
proposing new explanatory factors with which to understand the poor records of
EU-driven reforms in those countries. Among these factors are the presence of
political actors not in favour of EU integration and, more in general, conflicting
positions on the EU’s requirements in relation to each policy field. Moreover, recent
research on the Western Balkans suggests focusing on the evidence of limited
(or weak) stateness, which may be conceived as due to interrelated long-term
structures or deep-lying conditions that shape the scope of the EU-driven reforms.
These structures are obviously linked and influenced by the heritage and the legacy
of the past non-democratic regimes that have a different leverage in each country.
The above-mentioned assumptions will be applied in the analysis of the cases
studies presented in the next chapters.
1.4 Research Framework and Methodology
Thanks to the studies on the Eastern EU enlargement process summarized above,

also the theoretical approaches used to analyze judicial reforms in democratizing
countries shifted from a framework strictly focused on domestic factors towards a
more comprehensive theory of judicial reforms. They also considered the role of
international actors and, in particular, the interaction between the two levels of
action (Coman 2013).
In this vein, the aim of this book is to explain how these two levels interact in
four different countries (Slovenia, Croatia, Romania and Serbia) of South-East
Europe. In each country, in fact, the influence of the EU policies has been differ-
ently mediated by those national factors that, broadly conceived, can be considered
as expressions of the legacies of past authoritarian regimes. As already mentioned,
the countries selected are ‘crucial case studies’ (King et al. 1994) in relation to their
different position vis-à-vis the EU. The research framework applied in this book
takes inspiration from the work of Magen and Morlino (2009), devoted to assessing
the role of international actors in promoting the rule of law,20 and it draws on other
collaborative projects organized with scholars working on judicial reforms in
Eastern Europe.21
The analysis of each case study was carried out by considering the role of the EU
and activities related to the promotion of judicial reforms as the independent
variable, which produced very different results in the countries concerned. In
order to account for the different results and trajectories of reform processes (the
dependent variable), and in order to explain the differential impact of the EU on
these reforms, it was necessary to focus on the interaction between domestic and
European actors, while also disentangling also, in light of the above discussion, how
EU conditionality was applied in each phase and in each context. At the same time,
the reactions of domestic actors to EU conditionality were analyzed using the
concepts explained in the previous section, in particular by looking at the presence
of change agents and veto players.
Hence, following Magen and Morlino (2009), the outputs of the reforms will be
considered by distinguishing between rule adoption and rule implementation. In
fact, as case studies show, whilst EU conditionality was quite effective in promot-
ing the adoption of EU-driven rules especially in the years just before the accession,
implementation of those rules was instead a longer and more difficult process. In
some cases, especially those of Romania and Serbia, adoption of the EU’s sugges-
tions remained on paper without effective implementation of the reforms (Dallara
2007). The research findings also reveal that it is important to consider the inter-
action between EU and national actors in each different stage along the accession
path. The power of the EU conditionality to influence judicial reforms varies greatly
according to the stage: pre-accession, accession, or post-accession. It is in the
transition from the pre-accession to the accession stage that the EU’s power is
greatest. Moreover, it is when tensions at the domestic level between judicial and
political actors increase that EU conditionality has been used instrumentally to
20
The author was part of the research team of the project “Evaluating EU promotion of democratic
Rule of Law: Morocco, Romania, Serbia-Montenegro, Turkey and Ukraine” developed by CIRES
(Italian Research Centre for European Studies), University of Florence and the Center on Democ-
racy, Development and Rule of Law of the Stanford University, on which the cited book is based.
21
See in particular the studies of Coman (2009, 2013), Vodo (2013), Piana (2009), Mendeleski
(2010), Delpeuch (2007) and Hammerslev (2007).
1.4 Research Framework and Methodology 23
settle domestic disputes on policy solutions (Woll and Jacquot 2010; Coman 2013).
It is worth mentioning that when the EU conditionality has been used by domestic
actors in instrumental manner to solve political disputes or to obtain international
rewards, the reforms have rarely gone beyond the formal adoption.
Unlike in other studies analyzing judicial reforms in some of the SEE countries
(Mendelski 2013), the framework applied in this book will focus specifically on
interactions among EU-national actors, tracking how they have changed over time
and accounting for the changes. The aim is not expressly to measure the results
achieved in terms of better judicial quality or capacity; in fact, as the bulk of studies
on judicial system performances show, it is rather difficult and unreliable to assess
the functioning of the judicial system through the quantitative indicators or fixed
standards usually applied by international monitoring exercises to measure judicial
capacity (Contini and Mohr 2008; Langbroek 2010). These types of measurement
are even more ambiguous if related to countries that have quite recently experi-
enced non-democratic regimes, because the results in terms of indicators often do
not account for the quality of the inter-institutional relations or for the democratic
functioning of the judicial system. Therefore, by using a process-tracing22 meth-
odology, the book will analyze the specificity of EU conditionality in each case
study, accounting for its determinacy and credibility, and assessing whether the EU
strategy contributes to empowerment of pro-reform national actors. Then, as for the
national domain, in each case study will be assessed if (1) political elites were
convergent or fragmented in relation to the EU accession, and if veto players and/or
change agents are clearly identifiable. (2) There are observable legacies of the past
regimes producing structural constrains in particular on the judiciary. The key
aspects of the reforms will be described by specifying, where possible, which actors
led the reform path and if the overall process was characterized by conflict or
collaborative behaviour among both judicial and political actors. Finally, when
describing the reform paths, the results will be assessed in terms of rule adoption
and rule implementation (Table 1.2).
Thus, the main research questions at the basis of each case study analysis will be:
Which are the explanatory factors that better account for the reform trajectory in
each country? How the different patterns of interaction between the EU and
domestic actors (both judicial and political actors) can be explained? One important
explanatory factor, for example, is the different leverage of the legacies from the
past regime displayed by each country. Whilst legacies are less influential and more
easily overcome in the case of Croatia and Slovenia, as Chap. 2 will explain, this
was not the case of Romania, and especially of Serbia, in which domestic actors
22
George and Bennett (2005, p. 206) defined process-tracing as the “method [that] attempts to
identify the intervening causal process—the causal chain and causal mechanism—between an
independent variable (or variables) and the outcome of the dependent variable.” The main
ontological difference between the statistical method and the method of process-tracing is that
while the former attempts to define causal effects (i.e. the expected value of the change in outcome
when—in theory—only one independent variable changes), the latter identifies the causal mech-
anisms that connect causes and effects.
Table 1.2 Main focus and dimensions of the case studies analysis
Mediating factors (type of national Evaluable results in terms of
actors and related empowerment/ compliance (rule adoption and
EU conditionality weakening by the EU) implementation)
• Determinacy of • Presence/absence of change agents • Adoption of specific reform strat-
the rules and their power egies or laws compliant with the
• Presence/absence of veto players and EU requirements
• Credibility of the their power • Amendments and changes to the
membership • Political convergence/conflict on the adopted laws
perspective EU accession
• Empowerment of • Limited stateness and influence of • Tentative assessment of the poli-
pro-reform legacies from the past cies’ implementation
domestic actors
continued to be strictly linked to past frameworks of organization of the judiciary

and balance of powers.
In terms of methodology, for each case study the activity of the EU was first
analyzed by considering the EU’s recommendations for reform of the judicial
system. Consultation was made of the Regular Reports and other official docu-
ments, including the reports drawn from twinning and assistance projects relating to
the judiciary. This first step of analysis was conducted for each of the four case
studies starting from 2004. Secondary sources of academic literature were also used
to this end. During this phase (2004–2006), interviews were conducted in Brussels
within the DG Enlargement in order to gain insights, with the help of the EU
functionaries, into the specificities of the EU’s policy of rule-of-law promotion. The
second stage of the inquiry (2006–2010) consisted of analysis at national level. In
the context of some international research projects, on-site visits were made to the
four countries in order to meet judges, prosecutors, ministry of justice representa-
tives and NGOs, and other relevant national actors. In each country, a set of semi-
structured interviews were conducted in English or translated with the help of
national interpreters. Overall, around 40 interviews were organized. The data
collected through the interviews were integrated with reports and monitoring
articles from international observers and national newspapers. In 2009, during a
research stay in Brussels, another set of interviews to EU functionaries was
organized to assess changes in the EU policy. The first results of the analysis
have been presented in the past 5 years in papers given during international
conferences and seminars.
The aim of this book is thus to offer a comprehensive overview of the research
results collected throughout the entire study. The structure of the book is organized
presenting firstly the two cases, Slovenia and Croatia, with absence of conflict on
the EU accession and on the judicial reforms requirements. The different historical
backgrounds of these two countries and their quite straight relationship with the EU
made the judicial reforms less difficult than in the other countries analyzed. Here
the leverage of EU accession powerfully induced the national governments after the
authoritarian regimes to reduce political control over the judiciary. The only
References 25
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modernizing their systems using new tools and organizational models. Then,
Chap. 3 is entirely focused on Romania that is a case with “formal” elites consensus
on the EU accession, but with a huge conflict on the contents of judicial reform.
Romania is also considered a paradigmatic case (Pridham 2007; Dallara 2010;
Mendeleski 2010) of how the EU’s influence on judicial reforms can be greatly
augmented by the presence of change agents or, conversely, annulled by the action
of veto players. Chapter 4 instead deals with Serbia that is a case of high conflict
among the political elites on the EU accession and, subsequently, on all the related
requirements. It will also show how the legacies of the past are stronger in that
country; here, the Milosevic authoritarian regime deeply influenced the EU’s
capacity to impact on national actors and specifically on their conception of judicial
system.
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Chapter 2
Smoother Judicial Reforms in Slovenia
and Croatia: Does the Legacy of the Past
Matter?
The feature shared by judicial reforms in Slovenia and Croatia is that in both
countries, although they became EU member with very different timings, the
EU-driven reforms in the judicial sector—especially the structural reforms—were
adopted and implemented without particular conflict among political and judicial
actors. The path of judicial reform in these two countries shows in particular that, in
comparison with other countries such as Romania and Serbia, they were particu-
larly rapid and efficient in solving problems to do with establishing an adequate
institutional framework and guarantees of judicial independence.
The chapter focuses on this particular feature (less conflict on judicial reforms),
seeking to evidence the explanatory factors that may account for it. To this end, the
chapter first analyses common features of the socialist judicial systems and then
focuses on the main steps of judicial reform in Slovenia and Croatia, considering in
particular the period just after the transition. Both countries belonged to the Former
Yugoslavian Federation; therefore, although with some differences, they share the
common experience of the Socialist Republic and the influence of the Soviet model of
justice. The two countries will then be analysed separately by describing their respec-
tive pre-accession processes and the interplay with the EU. Subsequently, the two
paths of judicial reforms will be analysed by focusing on the main steps and the results.
2.1 Background Conditions: Justice System During

the Socialist Yugoslavia
In the Balkan peninsula,1 the Roman civil law tradition was introduced only after
centuries of Ottoman domination, especially in the countries of the Southern
Balkans. Although Slovenia and Croatia were the two regions least affected by
1
Although definition of the northern borders of the Balkans region has always been subject to
different interpretations, the geographical definition of the Balkan peninsula comprised all the

32 2 Smoother Judicial Reforms in Slovenia and Croatia: Does the Legacy. . .
the Ottoman domination, their strong Hungarian traditions and usages prevented the
full penetration of Roman civil law into the area until the beginning of the
nineteenth century (Benacchio 1995). Moreover, during the nineteenth century,
the unstable socio-political systems of those countries delayed the common devel-
opment and modernisation of the political and administrative institutions (Hosch
2006). The initial development of the judiciary in the region was influenced most by
the legal traditions of Austria, Germany, and France, which were introduced by
young scholars who returned after completing their educations at prestigious
European law schools.
After 1918, the new State of Serbs, Croats and Slovene (in 1921 it became
Yugoslavia) was formed. The legal organization of this state was highly differen-
tiated, in that it drew partly on Austrian and Hungarian sources and partly on Italian
law. The organization of justice and the status of judges were never uniform
because the region was divided into six “legal areas” (Uzelac 2000). The first
common codified legislation was enacted only in 1929 (Code of Civil Procedure).
Thus, when the region fully entered the Soviet sphere of influence, a fully
institutionalised judiciary system did not yet exist. For this reason, the most
significant and long-lasting influence on the judiciary was the legacy of the
40-year-long communist rule in Socialist Federal Republic of Yugoslavia
(SFRY). Many judicial institutions (Constitutional Court, high courts and tribunals)
were in fact created during the Soviet period. Although Yugoslavian socialism
increasingly differed from the Soviet model as a result of decentralization and
greater respect for local autonomy (Bianchini 1982), the organization of justice in
the Yugoslavian model had many features in common with the Soviet one. This
model spread across the Eastern Bloc countries in the period following the Second
World War and it followed the judicial experience of the Soviet State. Judicial
organization drew most inspiration from the principle of the “unity of power” and
its corollary. In practice, political interference had been extremely pronounced
throughout the entire history of Communist Yugoslavia, whereas the judiciary
remained an integral component of the communist power structure. Despite the
explicit constitutional provisions which guaranteed judicial independence, judges
were not able to rule without regard for the “socio-political system” (Kmezic 2012).
Trajkovic (1984, as cited in Kmezic 2012) wrote concerning the extreme impor-
tance of the relations between politics and the judiciary in Yugoslav society,
explaining that “[a]lthough not a political office, the judiciary is ‘the greatest
political institution’ because it implements and applies the law which is in fact a
concentrated expression of politics.” (p. 19).2 The government played an important
role in the recruitment of future judges. Furthermore, according to Kmezic (2012),
the “moral-political suitability” criterion for the election and re-election of judges
provided party members with considerable influence over the judicial bureaucracy;
former Yugoslavia countries plus Albania, Romania, Bulgaria and the European territories of
Turkey. See Prévélakis (1994).
2
Also quoted in Cohen (1989) p. 291.
2.1 Background Conditions: Justice System During the Socialist Yugoslavia 33
as a result, membership of the Communist Party constituted a criterion for election.

Consequently as reported by Cohen (1985) and Kmezic (2012), in 1979 almost
90 % of judges were members of the party, while the percentage was even higher
among the staff of the public prosecutors’ offices (93.7 %).
Judges were selected by means of an election system that granted them pro-
tempore representative powers, thus making them responsible for the body that
elected them. Jurymen participated with magistrates in the different instances of
judgment. No judicial control was exercised over the constitutionality of govern-
ment acts. Even after Tito’s rejection of Stalinism, in Yugoslavia the organization
and function of justice never detached itself from the basis of socialist law (Ajani
1996). The declared adoption of the principles of separation of powers and the
independence of the judiciary was formally neglected in the case of “higher state
interests”, which is a clear sign of the instrumentalization of law by politics.
The Yugoslavian Socialist Republic Constitution of 1974 perfectly matched the
principles described above. Although it generically proclaimed the principle of the
independence of judges, in practice, from election to confirmation, judges and their
work were controlled by the party organization.
However, Uzelac (2003) highlights that, in Croatia and Slovenia, political
intervention in the judicial sphere was not as intense as it was during the Stalin
era in the Soviet Union. Overall, the judiciary was neglected and marginalized,
because the majority of social problems were solved through party mechanisms and
other non-institutional channels. Judges’ decisions were usually still limited to the
dismissal of public officers, and the incrimination of opponents or intellectuals
criticising the dominant ideology. Two parallel systems of conflict-resolution were
in place during the Socialist Republic: one, at the party level, tended to prevent and
resolve every significant dispute by political negotiation; the other, the traditional
court system, was in charge of less important matters, such as small claims and
land-related issues (Uzelac 2000). Party members and political exponents were
granted absolute immunity. In the 1960s and 1970s judges were frequently publicly
admonished for not being sufficiently rigorous in cases related to verbal offences
against the party. Tito himself delivered a speech on the matter in 1967. Kmezic
(2012) quotes a statement by the president Josip Broz Tito that depicts the perfect
paradigm of the Yugoslav judicial system: “judges should not keep to the black
letter law like a drunken man to a fence” (p. 8). Although party interference
operated in a rather subtle and indirect manner during the SFRY, the legal system
continued to function as an instrument for the suppression of political dissidence
(Cohen 1992). The social status and prestige of judges significantly decreased, with
the consequence that they became progressively less professionalized in terms of
their qualifications.
Nevertheless, the fact that many of the judicial institutions, like the federal
Constitutional Court, the State Constitutional Courts and the State Supreme Courts,
were established during those years suggests that, at least at the level of the
organizational framework of the judiciary, there were some improvements during
the SFRY. Moreover, although judicial independence was formally guaranteed by
the Federal Republic Constitution, as well as by the constitution of each republic, in
practice procedures protecting the independence of the institution vis-à-vis other

political actors were never implemented. During the 1990s, after the desegregation
of the FRY, the first major change that each state had to undertake was to establish
the primacy of the national legal system, eliminating any references to the federal
one. Slovenia and Croatia were the two states that most rapidly began this process.
According to Cohen (1992), Yugoslavian desegregation had a significant impact
also on the administration of justice. The most important change was the shift in the
locus and character of political influence, as well as the creation of new obstacles to
the development of an independent and depoliticized judiciary—especially in
Serbia and Croatia with the ethno-authoritarian regimes of Tudjman and Milosevic.
In these two countries, political interference in the judiciary persisted as the main
problem throughout the period 1990–2000, although it was less intense in Croatia
than in Serbia.
2.2 Slovenian Pre-accession
Slovenia relied on trade privileges with the former European Community from
1980, when Yugoslavia up-dated trade agreements, protocols and a co-operation
agreement in line with the EC’s policy of concessions to Mediterranean countries.
The Republic of Slovenia became an independent and sovereign state in June
1991.3 Slovenia experienced a relatively smooth democratic transition because its
independence was the result of gradual political and social changes starting from
the 1980s (Toš and Miheljak 2002). As described by Lavrač and Majcen (2006), the
economic system was characterized by social ownership and self-management, and
a quasi-market economy (where firms were relatively independent and competed on
the market), with economic reforms and quite intensive privatization which began
in the late 1980s. As one of the smallest Yugoslav republics, Slovenia was also the
most developed, with a strong export orientation, particularly towards the
EU. Because the border was very open, and owing to the proximity of Italy and
Austria, Slovenians could make comparisons and form value judgments with
respect to the advantages of the market economy and of the EU (ibid.).
In terms of political actors, Slovenia’s transition was entirely similar to that of the
CEE countries, in particular Poland, Hungary and Czech Republic. The Demos
coalition brought the country to the first practices of multiparty politics; but, just
after the transition, different views and values emerged among the diverse factions
of the coalition, especially on the issue of the economic transition (Privitera 2007).
The liberals and the Christian-democrat groups were more oriented towards a rapid
entry into the market economy, conversely, the social-democrats wanted to preserve
some elements of social ownership, especially in those sectors in which it was
3
On 23 December 1990, 88 % of Slovenia’s population voted for independence in a referendum,
and on 25 June 1991 the Republic of Slovenia declared its independence.
2.2 Slovenian Pre-accession 35
functioning quite well, such as social policy and education (Bieber and Ristić 2012).
Immediately after Slovenia’s proclamation of independence, a process of engage-
ment with the European Union began. Diplomatic relations between Slovenia and
the EU were first established on 13 April 1992. Then a Co-operation Agreement
between the European Community and the Republic of Slovenia was signed on
5 April 1993 and came into force 5 months later. Subsequently, Slovenia’s formal
relations with the EU were enhanced through the Joint Declaration on Political
Dialogue, a Financial Protocol, and a Transport Agreement (Hafner 1999).
Political elites were in agreement on the accession within the EU, and very rarely
was it disputed in public opinion (Cohen 1992; Boduszynski 2010). Inclusion in the
EU was supported by practically all the major political parties (both coalition and
opposition). Lavrač and Majcen (2006) argued that the EU accession could be
defined as an overall national project based on a very broad political consensus. The
only exception among parliamentary parties was a national party which played on
populist and nationalist sentiments, but not in a significant way.
Moreover, the accession of Slovenia was strongly supported by its neighbouring
EU member states, such as Italy (only after 1996) and Austria (Lavrač and Majcen
2006). Throughout the 1990s, Slovenian governments made impressive organiza-
tional efforts to reform the ministries and the state organization rapidly, adapting
them to the requirements set by the pre-accession process. In this respect, according
to scholars (Fink Hafner 2005), one of the key success factors was the building of an
excellent state organization for the management of the negotiations and for com-
munication with the EU. The Europeanization of the Slovenian core-executive is
frequently cited as an outstanding example of EU accession management (Fink
Hafner and Lajh 2003).
Slovenia was the last of the ten in the first group of candidate countries to sign a
European Agreement, which was finally concluded on 10 June 1996, 4½ years after
Czechoslovakia, Hungary and Poland, and more than 3 years after Bulgaria and
Romania. Slovenia was also the country that had the shortest interval between the
European Agreement and its membership application. It applied directly after
signing the Europe Agreement, indeed on the very same day (ESIWeb 2012). The
European Commission delivered its opinion on Slovenia’s application for EU
membership in autumn 1997, at the same time as it did for the nine other applicants
from CEE. The Opinion gave credit to Slovenia by describing it as a stable
democracy, and thus declared that it fulfilled the first two Copenhagen criteria
(political and economic). The Opinion also pointed out that Slovenia would have to
make considerable efforts to adopt and implement the acquis, particularly in regard
to the internal market, the environment, employment, social affairs and energy
(ibid.). Slovenia was invited to start negotiations at the Luxembourg European
Council in December 1997, together with Poland, Hungary, the Czech Republic,
Estonia and Cyprus. The country was well-prepared for the negotiations because it
could rely on a series of important documents which had already been prepared
between 1994 and 1996 (the “Strategy for Economic Development of Slovenia”,
the “Strategy of International Economic Relations” and the “Strategy for Increasing
Competitiveness Capabilities of Slovenian Industry”). It was to a large extent on the
basis of these documents that Slovenia prepared its “Strategy for Accession to the
European Union” in 1998.
The chief of the negotiating unit said: “In its earlier stages the negotiating
process could [..] more appropriately be called a process of adjustment. In that
period, at least in Slovenia’s case, the real negotiations took place within the
country, with respect to its preparation to undertake the necessary changes not
only in principle, but also despite interferences with the existing division of
economic and political power.” (Potocnik and Garcia 2004, p. 375). Negotiations
began on 31 March 1998. Although, as said, Slovenia was the last among the ten
countries to start the negotiation phase, throughout that period it was considered as
one of the candidate countries best prepared for inclusion in the EU. Negotiations
were concluded in December 2002 (Bieber and Ristić 2012).
Before joining the EU, in 2003 Slovenia held a referendum on its EU member-
ship. The referendum revealed a high level of public support for joining the EU
(with 86 % of votes in favour of EU accession).4
To conclude this section, it may be said that the main reasons for Slovenia’s
relatively rapid and smooth pre-accession phase were the following: its more
advanced economic and social development compared with all the other former
Yugoslavian countries, and also some countries of the CEE; the peaceful transition;
the widespread consensus among political elites on EU accession; and an excellent
administrative capacity5 which enabled the country’s state machinery to transform
itself rapidly with a view to accession. The fact that a very efficient structure for the
negotiation was rapidly organized is evidence of this high administrative capacity.
For Slovenia, as for the other countries in the CEECs group, the membership
prospective was credible since the end of the 1990s (Boduszynski 2010; Börzel
2013).
2.3 Judicial Reform in Slovenia
The Slovene legal system belongs among the continental legal systems under the
influence of German law and legal order because the territory was for long part of
the Austrian Empire. The legal system was transformed according to the socialist
4
Public support for the EU was not invariable. Public opinion polls showed that support for the EU
changed over time, although not dramatically. (For more details, see Bucar and Brinar 2001). This
was due mostly to reactions to concrete developments, such as intensification of certain pressures
applied by the EU (neighbouring countries, Italy and Austria, in the first place) at the time of
signing the Association agreement.
5
For a useful overview on the concept of administrative capacity and its operationalization see
Addison (2009). Among the various definitions, applied here is the one generally provided by the
European Commission, which refers to administrative capacity as “administrative structures and
systems, human resources and management skills necessary for the adoption and implementation
of the acquis communautaire”.
2.3 Judicial Reform in Slovenia 37
model when the territory joined the Yugoslav republic. Some impacts of socialized
property, socialist self-management, protection of workers and the lower social
class are still apparent in the legal system today (Čarni and Špela 2006).
Some months after independence in 1991, the Constitution of the Republic of
Slovenia was adopted, introducing the principle of the separation of powers and
defining the tasks of the judiciary. Besides these basic provisions, the constitution
determined that judges must exercise their duties independently and laid out
principles concerning the organisation and jurisdiction of the courts, the participa-
tion of citizens in the performance of judicial functions, the election of judges, the
Judicial Council, and other relevant provisions (Dallara 2007). The leverage of the
legacies of the communist past was less influential than in the other countries of the
region. In fact, a good level of socio-political freedom had already been granted
during the Socialist Republic (Boduszynski 2010). Although the party controlled
the more sensitive political and social cases, as in all the other countries of the area,
the judiciary was able to maintain a good level of autonomy tolerated by the party
nomenclature (Dallara 2007). As mentioned, formal provisions relative to the
independence of the judiciary were already present in both the Federal and the
National Constitutions. Moreover, Slovenia was the only country belonging to the
Former Yugoslavia in which a judges association had already been established
during the Socialist Republic in 1971.
Cohen (1992) argues that, at the beginning of the 1990s, some cases of what he
terms ‘ethno-political justice’ occurred also in Slovenia. The fact that some Slove-
nian political leaders were disillusioned communists and former political dissidents
persecuted and imprisoned by the communist regime gave rise to cases of
unjustified dismissal and replacement. However, this happened to a lesser extent
than in the other countries. During the first years after independence (1991–1994)
there was no comprehensive reform of the judiciary because it functioned fairly
well and its reform was not perceived as one of the more urgent needs for the
country. In fact, the Slovenian political elite chose to focus on the restructuring of
the national economy. To this end, three important laws were passed: the law on
social ownership, the law on nationalization (to return nationalized properties), and
the law on privatization. Although these laws were not directly related to the
organization of justice, they had a direct impact of the judiciary because, owing
to the high political importance of their application, the pressure of the political
parties on the judiciary started to increase. The most important laws regulating the
functioning of the judiciary were enacted in 1994: the Constitutional Court Act,6
the Judicial Service Act,7 and the Courts Act.8 Still today, these are the laws that
regulate the organization and functioning of the Slovenian judicial system. The
1994 Judicial Service Act and the Courts Act introduced important changes,
6
Official Gazette of the Republic of Slovenia, 2 April 1994.
7
Official Gazette of the Republic of Slovenia, 13 April 1994.
8
Ibidem.
especially in organizational terms. The first instance courts were divided between
county courts of first instance and district courts of first instance. This separation of
the basic courts caused the departure/resignation of many judges because their
salaries were drastically reduced. The number of judges decreased, while the
number of cases increased because the economic reforms generated a high number
of trials and proceedings on economic and financial matters. According to the
Judges Association,9 there began in this period the large judicial backlog which
still today is the main problem of the country’s judicial system. The representative
of the Judges Association also argued that, during this phase of the reform, there
were some cases of political interference in economic-sensitive cases (cases regard-
ing enterprise denationalization, restitution of confiscated goods, etc.).
Formally, the Judicial Council, the Ministry of Justice shared the main powers in
the judicial system’s governance. The court presidents, assisted by the personnel
councils, managed individual courts, while the Judicial Council and the Ministry of
Justice shared the administrative tasks at national level. According to EU reports,
the system proved to be quite efficient and effective, while other sources (see in
particular EUMAP 2001) and the representative of the Judges Association stated
that, until 2005, the courts were too dependent on the executive for a variety of
services (organization and operation of courts, personnel, material and infrastruc-
ture support, etc.) and that the Ministry maintained the key role in appointing and
removing court presidents.
The 1991 Constitution also established the Judicial Council (Art. 130–131) as an
autonomous state body. The Judicial Council was composed of 11 members elected
for a non-renewable 5-year term. Five of them were elected by the National
Assembly on the proposal of the President of the Republic from among university
professors of law, attorneys and other lawyers,10 while the six other members were
elected by judges holding permanent judicial office from among their own num-
ber.11 The position and competence of the Judicial Council were defined only in
1994, when the Courts Act was passed. The Slovenian Council was modelled on the
Italian “Consiglio Superiore della Magistratura”.12 However, unlike the Italian
council, more competences remained in the hands of the Ministry or of the National
Assembly. From its establishment in 1994, the Council worked fairly well, acquir-
ing a good level of legitimacy in its relations with both the National Assembly and
the other political institutions, and with the judge’s representative.13 Only some
cases of discord between the Council and the National Assembly on judges’
9
Interview with the President of the Judges Association of Slovenia, 13 April 2007 April,
Ljubljana.
10
Two professors, two advocates and one lawyer.
11
One judges of the Supreme Court, two judges of the high courts and three judges of a first level
courts.
12
Interview with the Vice-President of the Judicial Council of Slovenia, 12 April 2007, Ljubljana.
13
This statement is confirmed also in the majority of the interviews conducted by the author with
ten key judicial actors in Slovenia in April 2007.
2.3 Judicial Reform in Slovenia 39
appointments were reported by the international observer (EU Regular Reports,

EUMAP 2001) and by the experts interviewed. The National Assembly rarely
rejected the candidatures proposed by the Judicial Council, which is evidence of
a certain balance between the Council and the Parliament that had not yet been
achieved in other countries. Court presidents were appointed by the Minister of
Justice from among the candidates proposed by the Judicial Council. If the candi-
date was rejected, he/she could request the Administrative Court or the Constitu-
tional Court to review the decision.
Overall, Slovenia achieved significant progress in the establishment of an
independent judiciary, as the 1991 Constitution and the above-mentioned legisla-
tion incorporated the formal elements necessary to guarantee judicial indepen-
dence. The Supreme Court was the highest appellate court in the state. It worked
primarily as a court of cassation.14 There were also four specialized Labour Courts,
a Social and Labour Court, and a Social and Labour Court of Appeal. In 1998, an
Administrative Court was established as a specialized court with divisions in four
cities. Thus, already during the 1990s, from an organizational point of view the
institutional framework of Slovenia’s judiciary was much more developed than in
the other countries of the former Yugoslavia and in line with all other Western
European countries. As already mentioned, a judges association had already been
established during the Socialist Republic. It was created in 1971, and before
independence it was a forum for discussion on the salaries, duties, and problems
of judges. At that time it was normal for all judges to join the association. In 1978
the first negotiations were held with the government on judges’ salaries, and the
association was treated as a negotiating partner. This was a major success; but there
were also important consultations in 1983/1984 when some judicial reforms were
decided, as well as in 1979 and 1984.15 Today, the Judges Association is fully
recognized and legitimated, but politicians and academics consider it to be a sort of
“judges’ trade union”. In fact, the bulk of the association’s activity is linked to
salary bargaining.
From the end of the 1990s onwards, the process of judicial reform in Slovenia
was entirely tailored to the EU recommendations in order to conclude the negoti-
ations in view of the 2004 accession (Dallara and Vrabec 2010). Political actors
were united in pursuing the reform and modernization of the judicial system, with
no serious disputes on the guarantees of independence or other measures relative to
the institutional power of the judiciary (ibid.). The only issues that provoked tension
between political and judicial actors concerned the scant efficiency of the judicial
system and salaries. To be noted is that all the Regular Reports issued by the EC
14
The Supreme Court is the highest appellate court in the state. It works primarily as a court of
cassation. It is a court with appellate jurisdiction in criminal and civil cases, commercial lawsuits,
cases of administrative review, and labour and social security disputes. It is the court of third
instance in almost all the cases within its jurisdiction. The grounds for appeal to the Supreme Court
(defined as extraordinary legal remedies in Slovenian procedural law) are therefore limited to
issues of substantive law and the most severe breaches of procedure (Čarni and Špela 2006).
15
Interview with the President of the Judges Association of Slovenia, 13 April 2007, Ljubljana.
from 1997 to 2004 assessed the independence of the judiciary as good and as not a
problem for the country. Even in the 2003 Report on Slovenia’s preparations for
membership, the EC declared that “The judiciary continues to have a high degree of
independence” (p. 12).16 This is an important difference with respect to the other
countries considered by this study. According to the Judges Association,17 between
2000 and 2005 attempts were made to increase the government’s power in the
appointment of court presidents and the distribution of cases, but the Judges
Association and the representative of the high courts were able to limit such
attempts. This is indicative of fruitful dialogue between judicial and political actors.
The President of the Judges Association explained that the major players in the
judicial reforms were “The Ministry and in several cases the Supreme Court, in
particular for changes related to procedural laws. The Minister sometimes
accepted the Supreme Court’s proposals in their entirety. We were also involved
in discussions on reform of procedural laws or concerning organizational
reform. . .”.18 again, this is an important difference with respect to the other
countries of the former Yugoslavia, in particular Serbia, where in the last decade
the Judges Association was never consulted or even recognized as an “actor”
entitled to express its opinion on judicial reforms. A Judicial Training Centre was
also established in 2004 through a twinning project with the French Ecole
Nationale de la Magistrature, and it received good support from both political
and judicial actors.19 This was a specific requirement of the EU in the last years
before the accession. Despite the progress made in the previous decade, according
to the international actors (EUMAP, EU and CoE) monitoring judicial reforms,
public trust in the judiciary remained low due to the heavy backlogs of the courts.
The problem of judicial backlogs was probably the most serious that the Slovenian
judiciary faced (Dallara and Vrabec 2010). Following a number of cases brought
before the European Court of Human Rights, in which the excessive length of
judicial proceedings in Slovenia has been recognized (as a violation of the right to
fair trial as set out in Article 6 of the European Convention on Human Rights), a
joint state programme was adopted from 2005 to 2010. This was the Lukenda
Project, whose purpose was to improve the efficiency of the judiciary, and in
particular to eliminate backlogs (Dallara and Vrabec 2010). This programme was
strongly supported by political actors, and although it was initially resisted by some
judges, it was then accepted and implemented by the judiciary. The Judges Asso-
ciation admitted that the inefficiency of the courts was a real problem, and it was
committed to finding solutions for the organisational problems that hampered the
functioning of the judiciary.
16
European Commission (2003), Comprehensive monitoring report on Slovenia’s preparations for
membership, COM/2003/0675 final.
17
Interview with the President of the Judges Association of Slovenia, 13 April 200, Ljubljana.
18
Ibid.
19
Ibid.
2.4 Croatia and the EU: The Long, But Successful, Pre-accession Path 41
2.4 Croatia and the EU: The Long, But Successful,

Pre-accession Path
In Croatia, the first post-Yugoslav elections opened the door to nationalist forces20
led by the Croatian Democratic Union (HDZ) under the leadership of former
Partisan General and political dissident Franjo Tudjman. The HDZ won the 1990
elections with its anti-communist expression of Croatian identity. As long as Serbs
occupied Croatian territory, Tudjman was able to monopolize power in Croatia.
Enacted in December 1990 was the new Constitution, which introduced a mixed
presidential parliamentary system with strong presidential powers. Tudjman was
able to tailor the new Constitution to his own ambitions in perfect authoritarian
style. Throughout the 1990s, in fact, Croatian politics were characterised by an
authoritarian style of governance accompanied by international isolationism and
suspicion of any type of supranational organisation like the EU (Jović 2006). With
Tudjman’s death, the elections of 2000 were won by a moderate six-party opposi-
tion coalition headed by the Social Democratic Party led by Racan, after an
electoral campaign that included accession to the EU in the government
programme.
In 2000, Racan’s government managed to overcome the international isolation
of the Tudjamn era. It made first significant steps in domestic reforms and gained
admittance to international institutions (for example, the World Trade Organization
in November 2000). The association agreement with the EU was signed in October
2001, and the application for membership followed in February 2003.
This was Croatia’s first experience of a coalition government, and a highly
heterogeneous one at that. Vlahutin (2003) argues that the new President, Stipe
Mesic, introduced a new style of government and immediately started to change
Croatia’s image abroad. “The new Government brought fresh optimism, but this did
not last very long. The coalition soon became rather dysfunctional” (p. 25). The
coalition government lasted one term, and paid the price for its deficiencies at the
elections of November 2003; but overall it left Croatia stronger and much more
democratic than it had been when it took office in 2000 (ibid.). In 2003, the return of
the Croatian Democratic Union (HDZ) to power with Sanader as Prime Minister
raised concerns about a possible resurgence of nationalism. Fortunately, however,
democratic changes introduced by the previous Racan government, the moderating
influence of President Stipe Mesic, and the restraint imposed by Croatia’s European
aspirations, mitigating the HDZ’s nationalism.
The strategy of Prime Minister Sanader was to transform the HDZ from the
nationalist-populist movement of the 1990s into a “modern” party of the conserva-
tive right. Nationalist forces were supplanted by democratic and modernizing
coalitions oriented towards European membership. Furthermore, Croatian nation-
alism had achieved some of its goals: the creation of a nation-state controlling all of
20
The same situation occurred in Serbia. See Chap. 4.
its territory; a moderate stance that marginalized the radical elements; and a break
with the legacies of the Tudjman era (Cierco 2009). The prospect of integration
built consensus among political groups and citizens around democracy as the basis
for the country’s political system, and as the vehicle for implementation of the
political and economic reforms.
As Cierco (2009) writes, the Ivo Sanader government did not do much to
improve the rule of law internally; nor did it reverse three major policy shifts
inaugurated in the post-Tudjamn era that became test issues for the EU’s attitude to
Croatia. The first was the change of policy towards Bosnia Herzegovina and the end
of Zagreb’s support for HDZ nationalist extremists in Herzegovina. The second was
cooperation with the ICTY, including the release of Croatian military personnel
widely seen as heroes. Finally, the return to Croatia of members of the Serbian
minority expelled in 1995 from Krajina was an important change that improved
relations between the two ethnic communities. This was one the strongest structural
constraints from the past that still affected Croatia’s stateness.
Overall, Croatia is a case of success in terms of relations with the EU and
outcomes of the accession process. In fact, Croatia was the first country in the
Western Balkans group to complete the Stabilization and Association Process and
gain the status of candidate, doing so in 2004.21 The negotiation phase lasted from
2005 to 2011, and accession was established for July 2013. The EU recognized
Croatia’s advanced status in the region and treated the country as a special Western
Balkans candidate (Noutcheva and Aydin-Düzgit 2012). The EU’s strategy towards
Croatia was characterized by the good credibility of the EU incentives, so that the
EU exercised virtuous leverage on policy adoption and implementation. A slight
decrease in EU leverage occurred in 2008–2009 when veto power was used on the
enlargement process to block Croatia’s accession because of the border dispute
with Slovenia on the Piran Bay. The pressure applied by the EU member states
rapidly induced the two countries to reach an agreement, and Croatia resumed the
pre-accession path. During the same period (2008–2009) problems arose when the
EU had to decide whether or not to open the negotiation on Chap. 23 (the one on
judicial reforms). Owing to a temporary decline in cooperation with ICTY, the
negotiation was not started at that time (ibid.). Thus, these 2 years may be seen as a
temporary interlude in the EU’s leverage.
The credibility of the EU membership prospect was finally strengthened after
2010 with the opening of the Chap. 23 negotiation; this was the final push which
produced rapid and effective results for judicial reform. As for the elites’ attitude
towards the EU, since Tudjman’s death in 1999, and especially after 2003, the
political elites were always largely in agreement on EU accession. Even
the moderately nationalist party, the HDZ,22 which was in power for most of the
21
Slovenia was not part of the Stabilization and Association Process launched by the EU for the
Western Balkans group in 1999.
22
The Croatian Democratic Union, the main centre-right political party that expressed nationalist
tendencies especially at the end of the 1990s.
2.4 Croatia and the EU: The Long, But Successful, Pre-accession Path 43
2000s, adopted a pro-EU rhetoric and an EU-reform agenda that facilitated at least
the process of law adoption (Noutcheva and Aydin-Düzgit 2012). The semi-
presidential form of government granted quite strong powers to the President,
although they were mitigated by two reforms in 2000–2001. This relatively stable
system impacted positively on rule adoption. The political science literature con-
curs in defining Croatia as a country with a good state capacity in term of
institutional performance and the administrative functioning of the public institu-
tions (Noutcheva 2012; Börzel 2013). At the level of public opinion, the EU-forced
cooperation with ICTY was a rather controversial and unpopular issue, although
less so than in other countries like Serbia. As reported by Coman (2014), the
Croatian democratic state was built on the basis of an official narrative focused
on the “Homeland War” and its “heroes”. This issue therefore dominated the
political scene for some time (Peskin and Boduszynski 2003). Even though Croa-
tian leaders were perfectly aware of this common national anti-ICTY stance, they
maintained a moderate attitude and shared a pro-European rhetoric throughout the
pre-accession period (Boduszynski 2013). The myth of the “Homeland War”
gradually vanished because the EU’s leverage on Croatian society was widespread
in the final stages of the negotiations. Nevertheless, collaboration with the ICTY
remained a sensitive issue at domestic level. Coman (2014) explains that not only
politicians, but also judges and academics, were critical of the mission and the
activity of the International Tribunal (Dimitrijevic 2009).23 Significant steps for-
ward were first taken after 2000 by Racan’s government, which tried to present the
ICTY as a legal, not a political, question. Then, after 2003, a gradual process of
reconciliation between the Croatian state and the ICTY began. Even Sanader, who
favoured the rapid pursuit of EU and NATO membership and saw compliance with
United Nations Security Council resolutions as means by which Croatia could
accelerate membership negotiations with both institutions. At that time, the wide-
spread elite consensus in favour of Croatia’s accession to the EU was important for
the success of this domestic policy. In fact, EU conditionality played a key
instrumental role in bringing about Croatia’s cooperation with the ICTY.
In term of legacies of the past, to be noted is that, in Croatia, the heritage of the
Yugoslav socialist system was mainly related to the country’s economic structure,
characterized by corruption and clientelism (Boduszynski 2013). Instead, the
socialist legacies were less influential in terms of stateness, and in particular in
terms of institutional performance and the administrative functioning of the public
institutions (Noutcheva 2012; Börzel 2013). Stateness problems certainly charac-
terized the pre-accession process of Croatia, especially in relation to the Serbian
minority, the territorial sea disputes with Slovenia, and the continuing myth of the
23
Also in relation to the ECtHR decisions, complaints against Croatian judges initially originated
from conflict-related issues (Lamont 2010, 2011). Although the majority of complaints concerned
the inability of the Croatian courts to complete proceedings in a reasonable period of time, they
deal problems related to the conflict and ethnic cleavages (Lamont 2011). This may therefore be
considered, although not so reliable, as an indicator of the judges’ lesser willingness to prosecute
these crimes within a reasonable period of time.
Homeland War. In spite of these problems, cooperation with the neighbouring

countries and the conditions of the minority enclaves has significantly improved
in recent years, especially with President Josipović (Boduszynski 2013).
2.5 Judicial Reforms in Croatia
Croatia is considered another case of success in terms of judicial reform outcomes.

In the years before the accession, the example of judicial reform in Croatia was
frequently cited as one of the most recent successes of the EU Enlargement Policy.
In this regard, Croatia’s ambassador in Italy, Damir Grubisa, declared that “The EU
acted as an important catalyst for change during the 6 years of negotiation: many
reforms could not have been implemented without stimulus from the outside. They
were impressive and changed the country’s political, economic and psychological
landscape. The most important reforms were those of the judiciary and the fight
against corruption.” (EUI Times, 9 July 2013). The following analysis proposes a
number of factors explanatory of this good performance. It differentiates between
two phases of the Croatian judicial reform: from 1990 to 2004 (before obtaining
candidate status); and from 2005 to 2013 (the final rush towards membership).
2.5.1 From Politicization of the Judiciary to the First

Reforms (1990–2004)
As said, in terms of legacies from the past, Croatia suffered more in the period of
the ethno-authoritarian regime of Tudjman in the 1990s than in the years of the
Socialist Republic. Political interference in the judiciary was the main problem
throughout the 1990–2000 period. At the end of the communist regime, in 1990, the
aim of the new leaders was to make independent a judiciary which had been
politically controlled for many years. However, until 2000, politicized behaviour
within the judiciary prevailed, and the 1990–2000 decade corresponded to a period
of political crisis and institutional inertia.
As Coman (2014) writes, although the Constitution adopted in 1990 regulated
the independence and impartiality of the judiciary, implementation of the constitu-
tional provisions was delayed. De facto, the decrees enacted by President Tudjman
violated most of the constitutional principles. Tudjman’s government mobilized
public institutions in general, and the judiciary in particular, “to privilege Croats
over other ethnic groups and above all to prevent Serbs from returning to Croatia”
(Blitz 2003, p. 184). This legacy generated a series of structural socio-economic
problems and tensions among judges with different legal and political views on
democratization and national identities.
2.5 Judicial Reforms in Croatia 45
In regard to the specific organization of the judiciary, Uzelac (2000) describes

how, from a formal legal standpoint, a new regulation and status for judicial power
was provided in 1990 by the afore-mentioned new Constitution. The changes were
mainly reflected in the introduction of the division and separation of powers, and in
guarantees of the autonomy and independence of judicial power. The Constitution
also included some vague provisions on the status of judges: judicial office was
defined as “permanent” but with some exceptions that made interpretation of this
provision difficult.24
Cohen (1992) recalls how, in spite of these provisions, less than 6 months after
taking power, Tudjman had already replaced 280 judicial officials. The controver-
sial laws adopted following the Constitutional provisions gave the Minister of
Justice wide latitude in the appointment, and especially the removal, of personnel.
Top officials in the Ministry would be able to decide whether judges had the
suitable human and civil qualities to fulfil their responsibilities. Some members
of the legal community objected that the vagueness of the new laws threatened
judicial independence to the same extent as the ideological criteria used by the
Communists. The sole purpose of the new provision appeared to be to purge former
communist judges and prosecutors, and allow their replacement by new judges
supportive of the Tudjman government. The state of emergency declared during the
1991 Balkan War meant a further concentration of power in the hands of the
executive. Uzelac (2000) emphasises that judicial reforms during the 1990s may
be better described as a lack of reform, or as an anti-reform. The absence of a
medium-long range strategy of development sent a clear message to the judiciary.
Therefore, until the end of the 1990s, there was a large outflow of judges to other
legal professions. Most of the judges that left the judiciary were among the best
qualified and most experienced, which contributed further to decreasing the Croa-
tian judiciary’s professionalization. The Courts Act passed in 1993 provided a basic
legislative framework for organization of the judiciary. Courts of General Jurisdic-
tion were the first level. These courts adjudicated in all disputes except those where
the law explicitly determined the jurisdiction of another court. These courts were
organized in three instances, and they were divided into regions. Municipal courts
had first-instance jurisdiction in both civil and criminal cases. The Supreme Court
was the highest court in Croatia, and as the last instance it decided on extraordinary
legal remedies against valid decisions taken by the courts of general jurisdiction
(dismissed appeals), and all other courts in Croatia (Kuecking and Zugi 2005). The
Supreme Court had significant administrative tasks and functions concerning the
judiciary as a whole. However, until recent changes, also the Ministry of Justice
exerted significant control over the administration of courts. According the
24
Article 120: a judge may be relieved of his judicial office only 1. at his own request; 2. if he has
become permanently incapacitated to perform his office; 3. if he has been sentenced for a criminal
offence which makes him unworthy to hold judicial office; 4. if in conformity with law it is so
decided by the High Judiciary Council of the Republic owing to the commission of an act of
serious infringement of discipline (Uzelac 2000).
Constitutional Court rules, the right to appeal was a constitutional right of every
citizen and of every legal entity.
Another legacy of the Tudjman regime, which lasted until the mid-2000s,
concerned the territorial organizational of the judiciary. Tudjman’s policy of
preventing irredentism led to the creation of 20 new counties and municipalities
and, subsequently, to an increase in the number of local courts.25 This was seen as a
way to satisfy all the different territorial communities; but, in fact, it only contrib-
uted to the creation of a huge, inefficient and costly judicial system not linked to the
real needs of the country (Cohen 1992). In this regard, important structural reforms
between 2004 and 2008 led to rationalization of the court networks in the country,
drastically reducing the number and types of courts and improving the efficiency of
the system as a whole (Uzelac 2003). The idea of a professional body responsible
for conducting the “internal affairs of the judiciary” and with important functions in
the selection process had been introduced into the Croatian Constitution in the days
of nation-building and democracy optimism of 1990. It had then been decided to
introduce a self-governing body. However, its implementation was delayed for
many years: indeed, in practice, the Council was not established until 6 years
later (Uzelac 2003).26 The models were the French and the Italian Superior
Councils of the Judiciary. But the idea of self-government by the judiciary seemed
too avant-garde for the period of transition, and its implementation was delayed for
many years. In the period from 1991 to 1994, the judiciary languished in an
informal limbo: judges were constitutionally well protected, but in practice they
were in a state of permanent provisionality (Uzelac 2000, 2003, 2004). The 1993
Court Act, according to the Constitution, provided that a body, named the “State
Judicial Council” (SJC), was to appoint, discipline and remove judges. However,
until late 1994 there was no such body and no rules on its composition. In this
vacuum, according to Uzelac (2000), the judiciary continued to function without
clear and uniform rules. “Judges continued to be appointed and removed from
office by Croatian Sabor (Parliament). In 5 years, the mandate of a significant
portion of judges expired: some of the judges simply continued to perform their
functions; some others received formal decrees on the expiry of their mandate and
consequent end of their office” (Uzelac 2000, p. 8).
The manner in which the SJC became merely a “lever in the hands of the
executive” was simple (Uzelac 2003). The time of appointment of the SJC members
coincided with a period of intense parliamentary crisis during which most of the
opposition parties instructed their deputies to leave the parliament, and for several
months the parliament enacted laws without debate, but only by vote of the HDZ.
25
Interview with Ivo Josipovic, current President of the Republic of Croatia, at that time, Dean of
the Law Faculty, University of Zagreb: 10 April 2007, Zagreb.
26
A complete analysis of the judicial reform process in Croatia during the 1990–2000 can be found
in various studies by Professor Uzelac, Law School of Zagreb. See in particular Uzelac (2000,
2003, 2004).
A first clash in the process of appointing the SJC members occurred in the Supreme
Court, which presented two very different lists of candidates.
In the meantime, the leadership of the HDZ, and Tudjman himself, decided to
take the SJC appointment process into their own hands. An informal commission
presided over by Tudjman’s counsellor for national affairs drafted its own list of
candidates, which largely consisted of people loyal to the ruling party. Since this
body did not have the official capacity to propose candidates, an innovative formula
was found: the Attorney General presented the list. All of the candidates on this list
were accepted, and the candidates proposed by the legitimate professional bodies
designated by law were rejected.27 The Council began its activity during a period
when the authoritarian tendencies of the Tudjman regime were increasing. What the
SJC did in that period was only controversial and reflected the political nature of its
role. From 1995 to 2000 many of the provisions and judicial appointments made by
the SJC were subject to appeals before the Constitutional Court, mainly presented
by the Judges Association of Croatia and by groups of rejected candidates. The
Constitutional Court accepted some of the appeals. Nevertheless, prior to 2000, the
Constitutional Court’s victory over the SJC was merely formal, without concrete
abrogation of the above-mentioned provisions. The crisis between the judiciary and
the government culminated in 1999. After many cases of political appointment
and removal, in particular at high level, the public perception of an inefficient and
politicized judiciary was widespread. In 1998 a new Minister of Justice was
nominated: Milan Ramliak, a professor at the Zagreb Law School. Shortly after-
wards, the Parliament asked him to prepare the bases for a comprehensive reform of
the judiciary. To this end, the Minister of Justice, for the first time in Croatian
history, published data on all the courts. This was the first public survey on Croatian
judiciary, and it highlighted the long duration of proceedings and the backlog of old
cases. The decisive blow came from the summit of the state: in 1999, Tudjman’s
annual address to the nation gave significant salience to the problems of the
judiciary. Only a few days later, a storm erupted in the entire national judiciary,
evidencing the absolute need of rapid reforms. In 1999 the Parliament enacted the
Law on Judicial Salaries, raising them by about 50 %, and shortly afterwards the
long-awaited amendments to the Law on the State Judicial Council were enacted.
Then events worked favour of the judicial reform process: the illness and death of
Tudjman, and the result of the 2000 parliamentary election in which the HDZ was
defeated by the democratic opposition. During 2000 the Constitutional Court
repealed several provisions of the SJC as unconstitutional; among them, those
concerning the appointment and dismissal of judges and court presidents. The
Constitutional Court imposed some decisions to made also significant change to
the Constitution.
27
In fact, the only candidates who were appointed as members of the SJC without express political
influence were two law professors nominated jointly by four Croatian law schools. These two
appointees later proved to be the most vehement critics of the SJC’s actions.
Thus, after 2000, the appointment procedure was radically modified. The main
innovations aimed at reducing the core of political intervention were the reduction
of the SJC members from 15 to 11, and the incompatibility of SJC membership with
court presidency. Other provisions gave broader powers to the Constitutional Court
in appealing against SJC decisions. The changes introduced in 2000, and the
subsequent amendments to the Courts Act, formally provided adequate limitations
on political appointments (Dallara 2007). This was a first significant step towards
reform of the entire judicial system. After 2000, the Croatian Judges Association
(founded in 1991 just after independence) became a recognized stakeholder in
judicial reform. Already during the 1990s the Association had tried to oppose the
arbitrariness of the SJC, but with scant results. A new leadership was elected in late
1997 and since then the Association has achieved more significant victories. About
80 % of Croatian judges are members of the Association. In the past 10 years the
Association has publicly and aggressively criticised the government for various
actions. Some of the experts interviewed said that at the beginning of the 2000s, the
Association had a too aggressive and corporative style, which was rather counter-
productive for the project of judicial reform.28
To be noted is that in this first phase the EU’s specific leverage on judicial
reforms was less powerful and that the changes described above were mainly the
result of national bargaining and battles among national political and judicial
actors. Then the EU’s influence on judicial reform significantly increased after
2004–2005.
2.5.2 The Real Push Towards Judicial Reform (2004–2013)
The changes introduced in 2000, and the subsequent amendments to the Courts Act,
formally set adequate limitations on political appointments. But the real push
towards adoption of the EU’s requirements came after 2005 with adoption of the
Justice System Reform Strategy and the relative Action Plan. As in other countries,
obtaining candidate status imparted the real impetus for politically sensitive
reforms such as that of the judiciary. Nevertheless, most of the measures envisaged
in the 2005 National Strategy were only implemented between 2009 and 2011
within the framework of the accession negotiations (Noutcheva and Aydin-Düzgit
2012).
An important political development occurred in 2009–2010 when the Sanader
government resigned and Sanader was subsequently arrested on charges of corrup-
tion. Sanader’s successor, Jadranka Kosor, in spite of the scandal involving his
HDZ party, declared zero tolerance of corruption even against his party members.
According to Noutcheva and Aydin-Düzgit (2012), this action was an obvious
28
Interview with Ivo Josipovic, current President of the Republic of Croatia, at that time Dean of
the Law Faculty, University of Zagreb: 10 April 2007, Zagreb.
attempt to conclude the EU accession negotiations and to secure Kosor’s political

future. There was therefore a clear alignment of the political leaders’ preferences
with the EU rules, so that the EU empowered the position of the Kosor leadership.
The final sprint in judicial reform came between 2009 and 2010 when the EU
monitored Chap. 23 of the Acquis devoted to the functioning of the judicial system.
The European Commission implemented the first lessons learned from Romania’s
and Bulgaria’s difficulties in judicial reforms by establishing a set of clearer standards
to be reached, including impartiality, independence integrity, efficiency, quality of
justice, and high standards of adjudication (Coman 2014). In this phase, judicial
reform was the major focus of EU conditionality defining the four key aspects of
judicial reform: independence, impartiality, efficiency, and professionalism of the
judiciary (European Commission 2006, 2008, 2010). Moreover, the European Com-
mission also closely monitored the Croatian government’s anti-corruption policies,
and it financed structural measures such as capital investment and the equipment of
courts, and judicial training programmes on issues such as economic crime, money
laundering, and the fight against corruption (Coman 2014).
As a reaction, in 2010, the Constitution was amended to strengthen judicial
independence and further to reduce political interference in the State Judicial
Council. Also the power of the Ministry of Justice on appointments was mitigated
by an increase in the autonomy of the State Judicial Council and the State Prose-
cutorial Council (European Commission 2010). New criteria and selection pro-
cedures based on verified qualifications and expertise for the appointment of judges
and prosecutors were finally introduced.
2010 also saw conclusion of the above-mentioned long process of rationalising
the court network begun in 2004. A substantial reduction of 50 % of backlog cases
in the courts was achieved between 2005 and 2010, from 1.6 million to 800,000
(Madir 2011). This rationalization policy is considered one of the “best practices”
for the territorial reorganization of courts, and it was frequently cited as a model to
be emulated by some old member states, such as Italy and France, in implementing
the same policy type (Carnevali 2013).
Noutcheva and Aydin-Düzgit (2012) argued that, taken together, the reforms
could be seen as a complete overhaul of Croatia’s judicial system. But then, as
Coman (2014) suggests, more sceptical scholars with experience in analysing the
previous wave of enlargement have labelled these first-order changes a “Potemkin
harmonization”. In truth, effective implementation took time and depended on a
variety of domestic factors.
The experiences of Romania and Hungary some years after the accession, when
many of the rule-of-law advances were reversed, make scholars more cautious
about this “first-order change” (Dallara and Piana 2014; Coman 2014). It was a
necessary condition for accession but not a sufficient one for a substantive trans-
formation of Croatian judicial policies. The lack of enforcement of judicial deci-
sions, even those of the ECHR, and impunity for war crimes, remained matters of
concern for the European Commission (European Commission 2011). As in
Slovenia so in Croatia, during the last 5 years the focus of the reforms concerning
the judiciary was mainly on the efficiency and capacity of courts. Political leaders
were generally willing to introduce changes within the judiciary in the name of the
country’s modernization.29 Even judges rarely opposed the major structural
reforms. After 2000, the Judges Association also became more open to international
collaboration. Croatian judges increasingly participated in international groups and
communities of judges (such as those within the Council of Europe), being among
their most active members (Dallara and Piana 2014). According to the judges
interviewed, this link with the international community of judges positively
influenced the Croatian judges’ attitude towards reforms.30 A good illustration of
this was provided by a Croatian judge: “The best way to change something within
the judiciary is to call the change in the name of the EU accession. The EU is a
powerful lever to speed up the reforms although, sometimes, only from a normative
point of view.”31
2.6 Conclusions
The foregoing description of the Slovenia and Croatia cases makes it possible to
define them as two examples of relative success in terms of both relations with the
EU and judicial reforms. As said, the two countries were treated by the EU as front-
runners of the Former Yugoslavia, although Croatia raised some more concerns
related to its Balkans conflict legacies.
The main explanatory factors for this positive outcome may be summarized as
the absence of conflict among political and judicial actors on the EU-driven judicial
policies; the existence of a good administrative capacity, which facilitated the
adoption of externally-driven norms; and the ability of the EU to target its strategy
on these two front-runner cases. The strategy towards Croatia was further targeted
and standardized, in particular in relation to the rule-of law-reforms, by learning
from the past difficult experiences of Romania and Bulgaria. These difficulties and
poor results induced the EU to improve the conditionality on the rule-of-law issues,
and especially on judicial reforms, thus strengthening both the credibility and
determinacy of its strategy.
In Slovenia, the credibility of the EU conditionality was good and reliable from
the early stages of the pre-accession process onwards. Moreover, the Slovenian
elites started to align their policies and institutions with the EU standards even
before candidate status was obtained. The good level of state and administrative
capacity allowed for this rapid progress in the democratization and modernization
29
This statement was confirmed in the majority of the interviews conducted with key judicial and
political actors in Zagreb in April–May 2007: in particular, in the interview with Professor Ivo
Josipović (current President of Croatia) held in Zagreb in April 2007.
30
Interview with the President of the Judges Association of Croatia, 9 April 2007, Zagreb.
31
Ibid.
2.6 Conclusions 51
of the state institutions. This advanced status may be considered the result of the
softer and more open Socialist regime during the 1970s and 1980s.
The attitude of the political elites was always in favour of EU accession, and the
enlargement requirements were never questioned. Starting from the first Regular
Reports, the EU evaluated judicial independence and the institutional framework of
the Slovenian judiciary as good and in line with EU standards. Thus, there were no
“politically sensitive” requirements to be fulfilled. This may be considered one of
the explanations for the smooth and non-conflictual EU-driven judicial reform
(Table 2.1). By contrast, the EU strategy towards Croatia encountered some more
critical phases due to the difficult collaboration with the ICTY. In spite of these
difficulties, which account for the longer and postponed pre-accession path, Croatia
is considered in the EU enlargement literature as vividly demonstrating political
empowerment through the prospect of EU membership (Vachudova 2005;
Noutcheva 2012).
According to Noutcheva and Aydin-Düzgit (2012), in the key phases of the
accession process, as political elites came to power, they legitimized themselves by
aligning their agenda with that of Brussels, and they initiated reforms that improved
Croatia’s accession prospects. This was the case of the HDZ’s return to power in
2003, which accelerated democratic reforms; the re-election of the HDZ-led gov-
ernment in 2007, which could not ignore rule-of-law requirements in light of
Croatia’s accession negotiations and increasing external demands and domestic
public expectations; and the coming to power of a new political leadership in HDZ
in 2009, which speeded up rule-of-law reform. The incumbents’ incentives
remained powerful throughout the 2000s, and substantive progress in judicial
reform and the fight against corruption was only achieved when the EU’s pressure
coincided with the interests of the new HDZ leadership in guaranteeing its political
credentials after 2009.
The two cases show that, although some evidence of the legacies of the past in
the functioning of the judiciary were still present after independence, political elites
were able gradually to overcome obstacles against organization of the judiciary by
using the EU as a powerful lever to justify and introduce important structural
changes. Meanwhile, it is evident that the greater determinacy of the EU’s policy
towards the two countries during the first half of 2000 positively influenced the
reform outcomes. The slightly different historical background of the two countries
(namely the greater influence of the Habsburg Empire before the Communist
period) may be one of the reasons why structural judicial reforms were less difficult
than in the other countries analysed (Bieber and Ristić 2012). Although political
influence on the judiciary was quite strong during the SFRY, as in the other
countries of the Yugoslavia federation, the profound Habsburg imprint on the
state administration, and later the influence of the Austrian and German legal
systems (also through scholars who had studied abroad), may be factors that
account for the more straightforward adoption of institutional reforms in compar-
ison with other South-Eastern European countries (Ibid.).
Thus, in this context, the leverage of EU accession was powerful in inducing the
national governments to reduce political control over the judiciary after the author-
itarian regimes. Although immediately after independence some political influence
Table 2.1 EU conditionality and mediating factors in Slovenia

Presence/absence of Results in terms
Period EU conditionality mediating factors of compliance
1990–1997 Formally absent Spontaneous EU-oriented Good judicial inde-
Some preliminary agree- reform plan even before pendence and
ments with the EU signed candidate status impartiality just
before the application for Strong commitment among after independence
membership national actors
Low leverage of legacies
1997–2003 Good credibility and Polarization between Rapid institutional
determinacy change agents and veto reforms
players not relevant Focus on the effi-
Strong pro-EU commitment ciency and quality
Low influence of legacies of justice
No structural constraints
and stateness problems
on the judiciary was manifest in both countries (especially in Croatia under

Tudjman), the key actors interviewed confirmed that political parties were open
to reform without the fear of losing control over the judicial system (Table 2.2).
Political actors were always largely in agreement on EU accession and require-
ments (though more in Slovenia than in Croatia).32 Even the goals related to judicial
reforms were achieved mainly in the name of EU accession. In these two countries
there was no polarization of actors between supporters of the EU requirements and
veto players, as instead occurred in the other two cases (Romania and Serbia)
analysed in this book.
Structural constraints linked to the legacies of the socialist regime were still
present in Croatia during the last decade, but, as described, they were mainly related
to the economic structure of the country, characterized by corruption and
clientelism (Boduszynski 2013). These socialist legacies only marginally
influenced the performance and administrative functioning of the public institu-
tions, which remained quite good (Noutcheva 2012; Börzel 2013).
In the first part of Croatia’s pre-accession process, some stateness problems were
still present (the condition of the Serb minority, the sea disputes with Slovenia, and
the myth of the Homeland War). But they have significantly improved in recent
years under President Josipović (Boduszynski 2013).
A balanced dialogue between political and judicial actors was maintained, and
this contributed to accomplishment of the institutional reforms relative to judicial
independence and governance. This is an important difference with respect to the
other countries analysed, and more in general with respect to the other countries of
the South-East European area. It should be stressed that, in both Slovenia and
Croatia, the existence of a powerful and unitary judicial association involving the
32
In Croatia, problems and concerns were instead related to the collaboration with the ICTY.
Nevertheless, the salience and the opposition against this issue decreased with advancement
towards membership.
References 53
Table 2.2 EU conditionality and mediating factors in Croatia

Presence/absence of Results in terms
Period EU conditionality mediating factors of compliance
2000–2004 Medium credibility, in Polarization between change First reforms of the
line with the other agents and veto players appointment proce-
Balkans countries not relevant dure and of
Good convergence on EU governance
requirements (except for
ICTY)
Some legacies and structural
constraints from the
Tudjman decade
2004–2012 EU credibility signifi- Polarization between change Steps forward in all
cantly increased after agents and veto players aspects of judicial
2005 (candidate sta- not relevant reform
tus) convergence on EU acces- Focus on the efficiency
Temporary decrease in sion, even on the ICTY and quality of justice
2008–2009 requirements
Increase again after 2011 Legacies and structural con-
(end of negotiations) straints only on the eco-
nomic structure
majority of the country’s judges was always recognized by national governments

and consulted (even if not always) on judicial reform matters.
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Chapter 3
The Successful Laggard in Judicial Reform:
Romania Before and After the Accession
The case of Romania is certainly the most interesting for analysis of the interaction
between the EU and national political and judicial actors. It provides clear evidence
of how EU conditionality can be used instrumentally by national actors with the
sole aim of obtaining the benefits offered by the EU without genuine commitment
to the EU’s standards. The Romanian case is also paradigmatic of how EU
conditionality dramatically loses efficacy once a country becomes a member.
Many articles in European studies have analysed judicial reform in Romania,
showing the just-mentioned limitations of the EU’s enlargement policy and, in
particular, of its rule-of-law requirements (Pridham 2007; Noutcheva and Bechev
2008; Andreev 2009).
For this reason, the chapter initially describes Romania’s path towards EU
membership and summarises the most important political events of the post-
accession phase. It then analyses the process of judicial reform, distinguishing
three different phases: the pre-accession phase (2000–2007), the post-accession
one (2007–2010), and the most recent developments (2010–2012). In conclusion,
the chapter evidences what explanatory factors, as defined in Chap. 1, are more
relevant and appropriate for explanation of the reform trajectory in the
Romanian case.
3.1 Romania’s Path Towards the EU
Romanian democracy began its post-1989 life faced with a challenging institutional
agenda. The new ‘democratic’ state was reorganized after the fall of the Ceausescu
regime and 2 years later, in 1991, a new Constitution was adopted. The constitu-
tional framework was based on a bicameral Parliament (Chamber of Deputies and
Senate), elected through direct universal vote and with equal powers (perfect
bicameralism) and on a President of the Republic, also directly elected. The form

58 3 The Successful Laggard in Judicial Reform: Romania Before and After. . .
of government was semi-presidential.1 Although de jure the President has only a

limited role (Sartori 2003), Romania has had rather strong presidents, and espe-
cially so immediately after the dismissal of Nicolae Ceauşescu.2
The legal foundation of political relations with the EU was laid by the 1995
European Agreement. Its purpose was to establish a framework for political dialogue
and for economic relations, as well as to ensure the technical and financial assistance
for institutional reforms being offered by the EU. Romania submitted its application
for EU membership in 1995. In 1999, the EU opened pre-accession talks, and the
negotiations started officially in 2000. The country’s political elites were always
largely in agreement on EU accession and the issue was rarely disputed. However, in
spite of a formal commitment to enter the EU, the pre-accession process was
characterized by fake reforms and partial compliance with the EU’s requirements.
Until 1996, the ruling elite was linked to the group that had led the revolution
from Timişoara together with Frontul Salvǎrii Naţionale (National Salvation Front,
FSN).3 In fact, the FSN, which was supposed to head only the ad interim govern-
ment, announced in January 1990 that it would compete in the next elections.
Although some anti-communist parties had already reorganized themselves,
among them two historical parties—Partidul Naţional Liberal (National Liberal
Party, PNL) and Partidul Naţional Tǎrǎnesc (National Peasant Party, restructured in
1990 as National Peasant Party-Christian Democrat, PNŢ-CD)—they were unable
to achieve a level of organizational development such that they could oppose the
FSN (Agh 2004). Therefore, the FSN4 easily won the 1990 elections.
In 1996, with the election of Emil Constantinescu as president, the anti-
communist bloc5 came to power, leading to the first political alternation of the
1
Sartori (2003) defines the Romanian semi-presidential regime as a “parliamentary system
strengthened by the direct election of the head of the State” (p. 617). Preda and Soare (2008)
maintain that the Romanian regime can be best described as “semi-presidential with parliamentary
phases” (p. 29)—even when account is taken of the strong role played by president Traian Băsescu
in recent years.
2
Bartole (1993) recalls in particular the role played by Ion Iliescu during his first mandate (1991–
1992) and the dominant position that he enjoyed in relation to the Prime Minister Petre Roman.
3
During the 1989 revolution, Ion Iliescu assumed presidency of the FSN, a body mainly formed of
second-ranking former members of the Partidul Comunist Român (Romanian Communist Party,
PCR). Iliescu managed to attract into the FSN also the anti-communist parties and the activists of
democratic parties that had remained inactive during the communist regime.
4
Gallagher (2005), who has conducted numerous studies on Romanian political history, recalls the
massive dissent against the FSN’s victory which exploded in Bucharest after the elections. The
protests were repressed by the military forces and by 10,000 miners recalled to the capital by Ion
Iliescu and deployed? through the city by the state authorities.
5
Until 2000, the Romanian party system can be summarized as follows. First, the parties formed
by the successors of the Communist Party, run by Ion Iliescu, initially united in the FSN, which
split because of internal dissension. The most important group within the Front was the future PSD
of Ion Iliescu, which allied in various elections with Partidul România Mare (Greater Romania
Party—PRM, extreme right) and Partidul Unitǎţii Naţionale Române (Romanian National Unity
Party—PUNR). Second, the bloc of parties called “anti-communist” or “historical” (Soare 2007)
which included Partidul Naţional Liberal (National Liberal Party, PNL) and Partidul National
3.1 Romania’s Path Towards the EU 59
Romanian political system. The government coalition was highly fragmented and it
encountered numerous difficulties in gaining consensus, and in confronting the
problems of Romanian society, among them a severe economic crisis that persisted
for several years. Between 1998 and 2000, the government had to deal with a
serious internal crisis and reshuffles which affected even key positions of the
coalition in power. Although the political situation was far from stable, the Euro-
pean Union decided, in 1999 at the Helsinki European Council, to open
pre-accession dialogue with Romania. The negotiations began in spring 2000,
when the country fully engaged in the pre-accession process.
In 2000, the renewed Partidul Social Democrat (Social Democratic Party, PSD)
of Ion Iliescu, returned to power. Many reforms launched by the former government
in order to set the process of alignment with EU standards in motion were blocked,
and the few successes achieved by the anti-communist coalition were annulled:
among them, the first project to reform the judicial system. After the first half of the
PSD’s mandate, it became clear that corruption was rife at all levels, but especially
in government institutions. The government frequently resorted to emergency
legislation, and the EU began heavily to criticise this method. Consequently, in
December 2002, the Copenhagen European Council postponed Romania’s acces-
sion to the EU until 2007, on the condition that further progress was to be achieved
in complying with the accession criteria. Thereafter, Romania and Bulgaria were
distanced from the first group of countries that joined the EU in 2004.
The 2004 elections were a crucial moment for the pre-accession process, when
Alianţa Dreptate şi Adevăr (Justice and Truth Alliance, D.A.), formed in 2003
between PNL and PD, managed to form a fragile majority with UDMR and with
Partidul Umanist Român (Romanian Humanist Party, PUR).6 C.P. Tăriceanu, pres-
ident of PNL, became Prime Minister. Simultaneously, Traian Băsescu, the leader
of PD, was elected President of the Republic, after defeating Adrian Năstase (PSD).
In December 2004, on conclusion of the pre-accession negotiations, the European
Commission adopted a favourable opinion concerning Romania’s accession to the
EU. On the 25th of April 2005, Romania signed the Accession Treaty, which
contained, however, some safeguard clauses. Finally, in 2007 Romania became a
member of the EU.
Romania is well known as the country that entered the EU without completing
judicial and anti-corruption reforms and without respecting the EU’s requirements
(Pridham 2007; Dallara 2010). For this reason, Romania was frequently called the
‘successful laggard’ of the enlargement process (Pridham 2007; Noutcheva and
Bechev 2008). Nevertheless, in 2006–2007 the EU accepted a ‘fake version’ of the
judicial reform as the accession day approached. Although some member-states
Tǎrǎnesc (which then reemerged as Partidul Naţional Ţăranesc—Creştin Democrat), Uniunea

Democratǎ Maghiarǎ din România (Democratic Alliance of Hungarians in Romania, UDMR) and
Partidul Democrat (Democrat Party, PD). For an exhaustive list of Romanian political parties see
Preda and Soare (2008), Ágh (1998), Gallagher (2005) and Carteney (2007).
6
PUR (today, the Conservative Party) was initially allied with the PSD but after the elections
decided to support the D.A. government led by Prime Minister Călin Popescu-Tăriceanu.
claimed that Romania had failed to comply with EU requirements, the EU was
unable to find instruments with which to sanction the country (Dallara 2013).
As Stănciulescu (2010) writes, the main problem affecting the Romanian polit-
ical system in the 20 years after transition were the frequent conflicts among the
head of state, the prime minister, and parliament.7 For this reason, the veto power of
the non-governmental parties was mainly exercised by resorting to the Constitu-
tional Court—behaviour which frequently blocked or delayed important reforms. In
this regard, two severe institutional crises occurred in 2007 and 2012. On both
occasions, the tension between the president and the prime minister led to demands
for the president’s impeachment, appeals to the Constitutional Court, and inter-
institutional stalling. These two crises, which will be described below, drew the
attention of the international community, and the EU and the CoE harshly criticised
the Romanian political elites for not respecting the EU values of democracy and
rule of law (Dallara 2013).
3.2 Background Conditions: The Judiciary Before

and During the Ceausescu ‘Sultanate’8
As Mendelski and Libman (2011) write, from the fourteenth century onwards,
various parts of Romania belonged to the Ottoman Empire. Only in the late
seventeenth century did the north-western part of the country become part of the
Habsburg monarchy, while the south-eastern parts remained Ottoman vassal states.
The penetration of Ottoman rules and habits was less pervasive than the Habsburg
influence in the north-west.
The complete unification of the country dates to after the First World War, while
during the Second World War Romania fell within the Soviet sphere of influence.
The cleavage with the pre-communist legal and judicial system was profound. In
regard to the changes in the legal and judicial system, Veniamin (1956) argues that
“[i]t is probably in the realm of justice that the Soviet-inspired innovations intro-
duced by the R.P.R. communist regime have had the most striking consequences”
(p. 301). Not only did the communists change the formal legal structure and its
underlying concept of justice, but they also replaced former magistrates with loyal
personnel. Judges trained according to Western standards were “systematically
eliminated” (Veniamin 1956).
7
Executive–legislative relations fall in the premier-presidential category (Shugart and Carey
1992) with a directly elected president who may dissolve the parliament, a cabinet responsible
only to the parliament, and a president who may be impeached by the parliament.
8
In terms of regime classification, the Ceausescu regime has been defined in several works by Linz
and Stepan (1996) a sultanate, meaning that “all the individuals, groups and institutions are
permanently subject to the unpredictable and despotic intervention of the sultan, and thus all
pluralism is precarious”. . ..[..].
3.2 Background Conditions: The Judiciary Before and During the Ceausescu ‘Sultanate’ 61
The judicial system was changed in order to deprive the individual of any sense
of protection or potential support. New judges were appointed, while the entire
judicial system became a tool of the regime. The process of subordinating justice—
which was one of the most important objectives of the new regime—began as soon
as the communists took power. In relation to the activity of trial courts, the
communist party took care to assure the dependence of justice through the use of
pertinent legislation.
One by one, the courts were subordinated, first by the Law of 31 March 1945 on
the trial of war criminals, which stated that a judicial panel must consist of two
professional judges and seven representatives of the people, and later by the Law of
24 November on organization of the judiciary, which extended the use of such
judicial panels.
With very few exceptions, judges and prosecutors were members of the Roma-
nian Communist Party, while those who were not members were denied promotion.
If a member of a judge’s family settled abroad, his career was endangered, and he
could even be excluded from the magistracy.
All these conditions were even worse during the Ceausescu totalitarian regime
(1965–1989), especially in its last period (after 1974). Judges never enjoyed
irremovability, and the appointment of judges to the Supreme Court was decided
by the Great National Assembly, and for a definite period of time. It was thus
ensured that any judge of the Supreme Court would be careful to obey the regime so
as to be sure that his mandate, which was limited in duration, would be prolonged.
Furthermore, in order to eliminate possible deviations, the Great National Assem-
bly was the authority which verified the constitutionality of laws.
The public prosecutor’s offices had a military hierarchy strictly observant of the
principle of hierarchical subordination. To provide just one example of the role of
the public prosecutor within society, until 1989 prosecutors attended—and, despite
being men, effectively participated in—the meetings of the medical commissions
which decided if a woman could have an abortion. The conditions were extremely
restrictive, and it was for this reason that many women died from illegal abortions
in deplorable conditions.
In the first years after the fall of Ceausescu’s dictatorship and the end of the
communist regime, no debate took place in Romanian society regarding the place of
justice or its role in society. Old mentalities inherited from the communist regime
persisted for a significant period of time following the revolution (Dumbravă and
Dragoş 2008).
The legacies of the Ceausescu regime impacted powerfully and deeply on the
judiciary; control over the judicial power was totalitarian, as it was in the other
sectors of the state (Demsorean et al. 2009). Even during the 1990s, the legacies of
the past were still present within Romanian society, and several cases of political
interference with the judiciary were reported by Romanian newspapers and by
various international or Romanian organizations (ibid.). The powerful role of
prosecutors inherited from the Ceausescu sultanate continued. After 1990, the
legacies from the past were still apparent in Romanian society: the confusion
between the roles of prosecutors and judges was maintained, not only in the legal
framework but also in judicial culture.
The long and difficult reform of the judiciary in Romania was therefore mainly a
matter of establishing new borders among political, administrative, and judicial
institutions (Coman and Dallara 2012). As Coman (2009) reports, attempts to
ensure the independence of the Romanian judicial system were made after 1996.9
3.3 Judicial Reforms in the Pre-accession Phase

(2000–2007)
The field of judicial reform was one in which compliance with the EU was most
difficult and delayed. The EU, for its part, after the fairly easy experience of the
CEE countries, was not prepared to address such an evident case of
non-compliance.
In its opinion on Romania’s application for membership of the European Union,
the European Commission pointed out that the Romanian judicial system was not in
line with the EU standards (European Commission 1997). Consequently, it
recommended that a series of measures be adopted in order to reinforce the
independence of the judiciary: to ensure “the independence of the judiciary from
the executive”, and therefore to reduce “the significant influence that the Ministry
of Justice has over judicial appointments”,10 “to improve the statute of magistrates
and prosecutors”, and “to clarify the statute of the National Institute of the Magis-
tracy”. The beginning of the EU enlargement pre-accession strategy, in 2000, did
not offer sufficient leverage to persuade Romania to start a concrete judicial reform,
in spite of the European conditionality, which, in terms of pressure, was quite strong
(Piana 2010).
Only in 2003 were some moves made in the process of judicial reform.11 A
Judicial System Reform Strategy was adopted in September 2003 to comply with
the external pressure from the European Union and the European Court of Human
Rights.12 It sought to establish new divisions between the judiciary and the political
branches in post-communist Romania. In 2003, the main concerns of the magis-
trates were the authority of the Ministry of Justice over the selection, promotion,
and evaluation of judges so that politicians and senior bureaucrats could be
9
Efforts at reform took place under Valeriu Stoica, Minister of Justice and member of the National
Liberal Party.
10
Commission of the European Communities, Regular Report 1999.
11
At that time the executive was headed by Adrian Nastase.
12
See e.g. the Judgment of the European Court of Human Rights of 28 September 1999 in the case
of Dalban v. Romania which found a violation of Article 6 of the European Convention; see
Dalban v. Romania (ECtHR), Judgment of 28 September 1999, Application No. 28114/95, ECHR
1999-VI as cited in Coman and Dallara (2010).
3.3 Judicial Reforms in the Pre-accession Phase (2000–2007) 63
appointed judges without passing standard examinations, as well as poor working

conditions and political pressures (Open Society Institute 2002). The main struc-
tural issues affecting the independence of the judiciary were the lack of separation
of powers, the financial autonomy of courts, the involvement of the executive in the
appointment and promotion of judges, and the lack of a legal culture (Open Society
Institute 2002). International, European and domestic actors continued to criticise
the Ministry of Justice’s supervisory powers over the judiciary and to require
consolidation of the Superior Council of Magistracy—an old Romanian institution,
founded in 1909 and recreated in 1991 (Coman 2009).
The Romanian governmental authorities, in spite of their willingness to join the
European Union, failed to make progress in this regard or to pass significant pieces
of legislation relating to judicial independence. The political debate within the
Romanian Parliament was dominated by those who believed that the Ministry of
Justice and the Superior Council of the Magistracy should have shared powers with
regard to the careers of magistrates (Coman 2009). Then, the 2003 Romanian
Constitution institutionalized a powerful Superior Council of the Magistracy in
charge of the careers, appointments, promotions and evaluations of magistrates, but
de facto all these competences were exercised by the Ministry of Justice.
As Coman (2013) states, the lack of any real political commitment among major
political leaders slowed the reform process. Although the 2003 Judicial Reform
Strategy, was partially appreciated by the European Commission, it failed to
achieve any results relative to the independence of the judiciary (ibid.). A
turning-point came only when a package of laws (Law on the Superior Council of
the Magistracy,13 Law on the Organization of the Judiciary14 and Law on the Status
of Magistrates15) was enacted in June 2004, following amendment of the Romanian
Constitution in 2003.
Amongst the changes envisaged by these laws, the Superior Council of the
Magistracy (Consiliul Superior al Magistraturii, CSM) was designated as the sole
organ responsible for the recruitment, careers, and disciplinary sanctioning of
magistrates. However, membership of the CSM continued to be cumulative with
membership of other bodies. Indeed, all members of the CSM, except the President
and the Vice-President, would be able to continue to exercise their respective roles
as magistrates in the courts.
The European Commission, in its regular report published in November, 2004
(European Commission 2004a), deemed the organisational and legislative changes
introduced via the law package as positive signals, but it underlined that more
concrete efforts were needed. Indeed, in 2004 conditionality for the judicial sector
was reinforced. Analysis of EU documents16 shows that, after 2004, the European
13
Law no. 317/2004 published in Monitorul Oficial no. 599 of July 2, 2004.
14
Law no. 304/2004 published in Monitorul Oficial no. 576 of June 29, 2004.
15
Law no. 303/2004 published in Monitorul Oficial no. 576 of June 29, 2004.
16
In particular, the Sector Programme Fiche Justice 2004–2006 (European Commission 2004b)
and the National Programme for Romania 2004 (European Commission 2004c).
Commission concentrated most of its technical assistance projects precisely in the

justice and anti-corruption sector.17
In the meantime, the EU decided that reform of the judiciary and anti-corruption
policy would be the priorities to close the negotiation process. As early as the
autumn of 2004, a proposal to introduce a safeguard clause began to circulate.
Amongst the principal reasons cited for such a decision was precisely Romania’s
non-compliance in reform of the judicial system. With enactment of the postpone-
ment safeguard clause, the EU stated that only if the reform was concluded by the
end of 2005 would Romania enter the EU in 2007. Thus, the conditionality acquired
greater leverage.
Following the 2004 election, a new Minister of Justice—Monica Macovei, a
civil society activist and legal expert for the Council of Europe (CoE)—was
appointed. The new government announced that its first priority was accession to
the EU. The entire government programme was tailored to this priority. The new
minister of justice was an entirely anomalous figure in the field of Romanian
politics. She had no political experience and she did not belong to a political
party; instead, she came from the environment of international NGOs, where she
had received her training and where she had continued to work until the elections.18
Indeed, Macovei did not have the support of the parties in government; but Prime-
Minister Tăriceanu brought pressure to bear so that she could become the minister
of justice. She immediately decided to complete reform of the judiciary and the
anti-corruption strategy in order to fulfil the EU’s requirements on those issues
(Dallara 2010; Mendelski 2012). Macovei immediately tried to launch a debate
with the SCM, the high courts, and the opposition parties in order to introduce
greater accountability, a more transparent selection process, better court manage-
ment, and other important changes.19
In her first months in office, Macovei submitted a draft law including several
amendments to the 2004 law package, and she requested the CSM to discuss it. The
draft law envisaged several important changes to the three 2004 Laws on the CSM,
organisation of the judicial system, and the status of magistrates. The most impor-
tant points concerned the appointment of courts’ presidents and of prosecutors, and
the attributions of CSM members. Whilst under the 2004 Law, court presidents and
chief prosecutors were to be appointed directly by the CSM solely on the basis of
17
Although the financial data by themselves cannot be seen as indicative of the efficacy of EU
policy, it emerges from the document on the Sector Programme Fiche Justice 2004–2006 (Euro-
pean Commission 2004b) that funding for the reform of the judiciary for the years 2004–2006 had
been indeed substantial (59.96 million euros). On the material effects of such funding, the
description of the policy process demonstrates that, beyond the formal adoption of the requisite
norms, these had not brought about significant improvements with respect to the efficiency of the
judicial system.
18
Macovei had been one of the first members of the Helsinki Committee in Bucharest, where she
had also held, for some years, several important offices.
19
Interview with a judge at the Bucharest Tribunal and a member of UNJR (General Union of
Romanian Judges), Bucharest, May 2008.
3.3 Judicial Reforms in the Pre-accession Phase (2000–2007) 65
their curriculum vitae, amendments to these provisions included mandatory com-

petitions for acquiring such positions. With respect to the status of CSM members,
the proposed amendments made membership of the CSM incompatible with any
other managerial position/position of authority. The position as a CSM member
would thus become a full-time job. Amongst other things, amendments also
included normative changes to the pensions of judges at the High Court of
Cassation (Coman 2007; Carp 2007).
Every attempt at dialogue on these reforms was made in vain. Given the draft
law’s contents, it is evident why it provoked the immediate and forceful opposition
of the CSM and some of the judges at the Court of Cassation. Indeed, in the early
months of 2005, the CSM launched a fierce campaign against the new minister and
her reform proposals. In the meantime, however, in order to meet the deadlines
imposed by the EU for completion of the reform, the CSM published a definitive
text of the Reform Strategy for the judicial system, and the government passed
(with an emergency ordinance) a bill—styled the European Reform Law20—intro-
ducing numerous changes and amending large part of the 2004 laws. The laws
introduced by Minister Macovei were much appreciated by the European Commis-
sion, which explicitly welcomed the ‘new deal’ for the judiciary launched by the
minister. In this regard, she was a clear example of a change agent that the EU
sought to empower.
Just after the law’s enactment, the Social-Democratic Party (Partidul Social
Democrat or PSD) submitted to the Parliament a no-confidence motion against the
new government, but it failed to have it passed. In open defiance to the government
and the minister of justice, the PSD and the Great Romania Party (Partidul
România Mare) appealed to the Constitutional Court and requested its ruling on
the constitutionality of the law package. Three days later, the Court of Cassation
itself informed the Constitutional Court of the presumed unconstitutionality of the
provisions of the new laws, and thus activated the a priori constitutionality control
procedure.
The Constitutional Court astonished both national and international public
opinion by declaring that some articles of the laws explicitly violated the Consti-
tution. As a consequence, judicial reform in its entirety was blocked. This decision
triggered a full-blown political storm, with Prime Minister Tăriceanu threatening
resignation during the summer of 2005. Although the Constitutional Court had
declared unconstitutional only the articles rectifying the maximum age limit for
exercise of the functions of a member of the Court of Cassation, and those on
membership of the CSM, the entire Law was returned to the Parliament, including
its provisions on the restitution of confiscated properties (Carp 2007).
The majority of the members of the Constitutional Court had been appointed by
the PSD leader, Iliescu, when he was President of the Republic. In this respect, the
PSD, the SCM, and the High Court of Cassation acted as veto players (Tsebelis
2002). They blocked the judicial reform and preserved the status quo. It should be
20
Law no. 247/2005, published in Monitorul Oficial no. 653 of July 22, 2005.
borne in mind that, among the European Constitutional Courts, that of Romania has
very considerable powers of both a priori and a posteriori control (Rinella 2000;
Carella 2003). The above-mentioned actors represented the old guard of the Com-
munist judicial organization which had survived even the fall of Ceausescu.
Because the costs of the Macovei reform would have been too high, they used
their veto power to block the reform. The Macovei laws were modified, with
annulment of many of the most important changes (Dallara 2010). A press state-
ment posted on the Ministry website stated that: “the decision of the Court has been
extremely politicized; many of the judges of the Constitutional Court have been
appointed directly by the PSD. The opposition of the CSM and the Court of
Cassation stems from the fact that many of the judges of the Court of Cassation
are also members of the CSM, and do not want to abandon any of these two charges,
not even on a temporary basis” (Ştirea Zilei 2005).
The institutional crisis had been averted by the mediation of President Băsescu,
who took it upon himself to have a new version of the Law adopted in order to avoid
negative evaluation by the EU in view of accession. The law package was then
reintroduced, although it was considerably adjusted in areas concerning reform of
the judiciary.
During the first months of 2006, however, yet another political crisis was
provoked by Macovei’s anti-corruption policy. She issued a decree-law instituting
a special anti-corruption department specialized in the investigation of high-level
corruption cases. The Parliament blocked the decree, and the PSD subsequently
accused the minister of adopting vindictive, vigilante-style, measures. This dead-
lock, too, was resolved through mediation by President Băsescu, and the law was
eventually enacted, albeit modified with respect to its original version. Therefore,
until 2007, the justice and anti-corruption sector was characterised by a constant
endeavour to adjust the EU’s requirements downwards.
Nonetheless, the EU accepted this ‘fake version’ of the judicial reform as the
accession day was approaching. In spite of the claims of some member-states that
Romania had failed to comply with the EU’s requirements, the EU was unable to
find instruments with which to sanction the country. On January 2007, Romania
entered the EU, and shortly afterwards (in February) the Romanian Senate passed a
motion against Minister Macovei, requesting her resignation.
3.4 Non-judicial Reforms After the Accession (2007–2010)
In October, 2006, just before accession, minister Macovei appointed a new Prose-
cutor General tasked with starting the actual implementation of the anti-corruption
strategy. The choice of a particularly pugnacious young woman (33 years old),
Laura Kövesi,21 provoked the discontent of all the opposition parties. The Senate
21
This was the first time that a woman had ever occupied this position.
3.4 Non-judicial Reforms After the Accession (2007–2010) 67
voted a motion revoking the Minister’s authority to appoint the Prosecutor General
and transferred it to the CSM.
Simultaneously, for the first time in Romanian history the Senate approved a no
confidence motion against the minister, with 81 votes out of 137.22 The motion
accused the minister of delaying implementation of reforms and of undue interfer-
ence in the judiciary, and it demanded her immediate resignation. The Constitu-
tional Court subsequently rejected the motion, because this instrument could not be
used to demand the resignation of a minister.23 However, from February to April,
2007, Macovei found herself at the centre of a massive smear campaign in the
national media, including embarrassing accusations of alcoholism and drug abuse
fomented by her political adversaries. In this climate, in April 2007, the Prime
Minister ousted Macovei from the government on the occasion of a reshuffle. Her
exclusion from the government signalled the de facto blockage of the entire reform
of the judiciary.24 Reactions from the EU and the international community were
emphatically negative. Macovei was seen as an exemplary political figure by the
EU, and several Brussels functionaries25 repeatedly admitted that Romania’s
accession to the EU could be credited to a considerable extent to the minister’s
reform actions (Mungiu-Piddipi 2008).
Macovei’s exclusion from the government (and that of two more ministers) was
the starting point for an institutional crisis that led to the impeachment of President
Băsescu. Indeed, following the government reshuffle by Tăriceanu, Băsescu had
withdrawn his party’s (the PD) support for the government. The tension between
the two leaders reached its peak on 20 April 2007, when the Parliament passed a
motion to impeach Băsescu, accusing him of abusing his powers and violating the
Constitution. In the subsequent referendum of 19 May 2007, which was required for
confirmation of the President’s impeachment, a majority voted against impeach-
ment, and Băsescu reassumed presidential office. From that moment onwards,
Tăriceanu led a new minority government, without his former allies but with the
support of Uniunea Democrată a Maghiarilor din România (UDMR) and with the
22
In the 2004 elections to the Senate, the PSD had obtained 46 seats, and the PUR (which went on
to support the Tăriceanu government) 11. Alianţa Dreptate şi Adevăr (PNL and PD) had obtained
49 seats. The PRM (close to the National Unity alliance) gained 21 seats, while the UDMR
(a partner of the Tăriceanu government) won 10. Therefore the majority of the Justice and Truth
alliance was very precarious: 70 seats of the PNL + PD + PUR + UDMR versus the 67 seats of
the PSD + PRM (Source: OSCE 2005).
23
Interview with an attorney at law, member of So-Just, Bucharest, Bucharest, May 2008. The
Society for Justice was established in 2005 after several months of intensive communication on the
Internet (http://groups.yahoo.com/group/reformaj/), among individuals with a shared interest in
the reform of the Romanian justice system now in progress—judges, prosecutors, SCM members,
the minister of justice, solicitors/barristers, legal advisors, journalists, students, political scientists.
The group was in contact with and supported by the Minister of Justice, Monica Macovei.
24
This statement was confirmed by all the experts interviewed in Bucharest in 2009.
25
Franco Frattini, in particular, issued several official communiqués in support of the minister’s
action and condemned her expulsion from the government (Mungiu-Piddipi 2008).
parliamentary vote of the Social-Democrats—although the latter had no direct

representatives among the new ministers.
Once Macovei had been expelled from the government, prime minister
Tăriceanu appointed as the new minister the Liberal Tudor Chiuariu, who imme-
diately modified many of the original provisions in the reform strategy issued by
Macovei. Such attempts started in May 2007, while president Basescu was
suspended for a month and a PSD member replaced him. During that month, the
government tried to remove Doru Tulus as head of the anti-corruption bureau in the
National Anti-Corruption Direction. Judge Tulus was at that time investigating
several corruption cases involving prominent politicians. The campaign continued
when the Senate (also in May) passed the law creating the National Integrity
Agency, but only after it had stripped the law of most of its key provisions. Later,
in November, another blow to any anti-corruption efforts was delivered by the
Chamber of Deputies’ decision to endorse a revised criminal code which had
effectively introduced legal ways to protect corrupt top officials or businesspersons
from being investigated or convicted for corruption.
A few months after the appointment of the new Ministry of Justice, the National
Anti-Corruption Direction requested permission (from a special Commission
chaired by the President of Romania—whose placet was necessary for investiga-
tions of political figures) to proceed against him because he was suspected of
abusing his office. A few days before Chiuariu was supposed to appear before the
commission, the government issued a decree suspending its activity and blocking
investigations of ministers suspected of corruption (ANSA Balcani 2007). How-
ever, the Constitutional Court ruled that the decree was unconstitutional. In Decem-
ber, 2007, the minister received a definitive condemnation for abuse of office
damaging to the state, and submitted his resignation. A new minister was appointed
only in January 2008.
Further striking cases of corruption involving prominent politicians (like former
Prime Minister Năstase) came to light throughout 2008, so much so that the
international media (The Economist 2008) spoke of the country’s regression with
respect to the pre-accession phase. As one of our interviewees recalled, “in Roma-
nia, corruption is not an element defining just one party. Usually, it is those in power
who abuse it. Then this induces these people to enforce defensive measures”.26
Another development that obstructed anti-corruption action was the election in
2008 of Lidia Bărbulescu as chairwoman of the Supreme Council of the Magistracy
(CSM), in a move widely seen as another heavy blow to the fight against corruption
and to any hopes that the judiciary might eventually become independent from
politics. Bărbulescu was known to be close to the PSD party and had been an active
opponent of the judicial reforms introduced by former minister Monica Macovei.
She was accused of conflict of interest because she was a member of the CSM while
also serving as deputy chairwoman of the Supreme Court, one of the institutions
26
Interview with the Project Coordinator, Rule of Law Program South East Europe -Adenauer-
Stiftung, Bucharest, May 2008.
3.4 Non-judicial Reforms After the Accession (2007–2010) 69
whose activities she was supposed to oversee. Bărbulescu was also involved in a
scandal in which she allegedly tried to alter the results of her daughter’s magistracy
promotion examination.
A second grave institutional crisis erupted at the end of 2009, again because of
accusations of corruption against members of the government. The government in
office since November 2008, in fact, was the result of an alliance between the
Social-Democrats (PSD) and Băsescu’s PDL27 modelled on the German Grosse
Koalition and headed by Emil Boc, a representative of the PDL. At the end of
September, 2009, the coalition entered crisis when the Minister of the Interior, a
PSD appointee, denounced PDL members for organising electoral frauds in prep-
aration for the presidential elections to be held in November 2009. Following these
allegations, Prime Minister Boc dismissed the Minister of the Interior, accusing him
of being responsible for the rise in crime in the country. All the Social-Democratic
ministers subsequently resigned from the executive, leaving in place a minority
one-party government (PDL). The deadlock continued, with the country having
effectively no government for more than 2 months (Iordache 2009). In the mean-
time, international organisations (the EU, the International Monetary Fund, and the
World Bank), concerned about the continuing political crisis and the apparent
incapacity of the state institutions to resolve it, froze all forms of funding for the
country. Only after the second round of presidential elections, when Băsescu was
re-elected as President, would a new PDL and UDMR Government, again led by
Boc, be finally appointed at the end of December 2009 (Brunsden 2009).
The continuous involvement of senior ministers and key political figures in
corruption could explain as all the true reformist measures were opposed. One of
the experts interviewed in Bucharest stated that “An independent judiciary should
probably put behind bars at least half of the country’s politicians at both local and
central level, so it is obvious why an independent judiciary would not be in the
politicians’ interest. At the same time, old judges who gained so much in the times
of the ‘dependent’ judiciary of previous PSD mandates, are also keen on
maintaining their positions of influence, and the Superior Council of Magistracy
(CSM) has basically been transformed into the main vehicle to keep these people in
charge (Macovei was able to replace some corrupt prosecutors with independent
ones, but had no influence on the CSM)”.28
27
The PD-L was born in January 2008 from the merger between the Democratic Party (PD) and
the Liberal-Democratic Party (PLD), as a political party supporting President Băsescu.
28
Interview with a Romanian policy analyst; Central and South-eastern Europe Control Risks
Cottons Centre in London.
3.5 An Enduring Institutional Crisis (2010–2012)
Judicial and anti-corruption reform was stalled at least until 2011 owing to the
political and institutional deadlock described above. Only after 2008 did the EU
start openly to criticise the Romania political elites for their lack of commitment to
judicial reform. Firstly, the European Commission admitted that the SCM, despite
the key role that it could have played in promoting judicial reforms, was not really
committed to genuine reforms, accountability, and integrity (Mendelski 2012;
Coman and Dallara 2012). Moreover, in its 2010 monitoring report, the EU
continued its censure of the Romanian situation. It denounced an enduring resis-
tance to anti-corruption and judicial measures by politicians and judicial elites
(European Commission 2010; Mendelski 2012).
To be noted is that, in the last 3 years, at least in term of the functioning of the
SCM and the independence of the judiciary, the situation gradually improved
thanks to a new generation of judges more open to reforms and well-trained at
the National Institute for the Magistracy, which was the institution that best adopted
and implemented the EU-driven reform of judicial training (Piana et al. 2013).
There were some powerful judges associations in Romania, and many of the
Romanian judges were actively involved in the Council of Europe committees of
judges and other international judicial networks. This reinforced the judiciary as a
whole and supported the diffusion of best practices and models for the organization
of courts (Piana 2010).
On this last point, one of the experts interviewed said that “I’m sure some of the
younger judges would like to see some changes in the system, but the truth is that
most courts are still dominated by these elderly dinosaurs, and the few young
people who decide to become judges (the job is not very attractive to youth at
this stage) tend to replicate the behaviours of their older bosses, falling into a never-
ending circle.”29
However, in spite of these positive signals concerning the functioning of the
judiciary, the RoL’s supremacy continued to be undermined by the fragmentation
of the political system30 and by difficult and challenging inter-institutional
relations.
As had already occurred in 2007, during the summer of 2012 a renewed attempt
was made to impeach president Băsescu.31 This time it was made by a newly
elected social-democratic government headed by a young leader, Victor Ponta.
29
Interview with a Romanian policy analyst; Central and South-Eastern Europe Control Risks
Cottons Centre in London.
30
In terms of number of parties (24 parties in six elections). Source: Comparative Manifestos
Project Data set.
31
In 2007, the Parliament suspended Basescu as president and called a referendum on the grounds
that he had exceeded his authority and pushed the country into a political deadlock. On this
occasion, 74 % of Romanians voted against impeaching Basescu on charges that he had
overstepped his authority. See http://www.reuters.com/article/2007/05/20/us-romania-referen
dum-idUSL2026723720070520.
3.5 An Enduring Institutional Crisis (2010–2012) 71
As Blokker (2013) reports, Ponta’s government not only called for the impeach-
ment procedure against the supposed unconstitutionality of Băsescu’s actions but
also went further in a clearly unconstitutional direction by using emergency ordi-
nances to dismiss the speakers of both chambers of parliament, as well as the
Ombudsman, and by issuing a decree on the referendum rules in order drastically to
increase the probability of Băsescu’s successful impeachment. Moreover, the
government managed to restrict the powers of the Constitutional Court and intim-
idated its judges with the proposal of introducing the impeachment of judges.
Blokker (2013) recalls that these actions by the Ponta government were strongly
criticised internationally, as well as in the European Commission’s progress report
on Romania. In response to this international mobilization, the CoE Secretary
General asked for a Venice Commission (VC) Opinion on the compatibility of
the actions taken by the Romanian government with the constitutional principle of
the Rule of Law.32
The severity of the Ponta government’s attack on the Constitutional Court was
confirmed by two highly unusual letters of complaint sent (in July and August 2012)
by the Court directly to the VC, as well as to European Commission officials, to ask
for help against “virulent attacks” on its independence by the government (Blokker
2013). As Blokker (2013) explains, the Constitutional Court also showed resilience
in resisting the attacks by issuing a decision on the invalidity of the referendum held
on Băsescu’s impeachment. This referendum was held on 29 July, but failed to
reach the quorum of 50 % of the electorate. The Constitutional Court therefore
ruled that the referendum was void, with the consequence that Băsescu was
re-installed.
As expected, the VC evidenced huge problems with respect to many issues that it
believed strongly affected inter-institutional accountability and dismantled the core
RoL principle. The VC cited the intent to restrict the competences and jurisdiction
of the Constitutional Court by using an emergency ordinance; the action taken by
the government in creating a commission within the Senate to investigate abuses by
public prosecutors33; and, more generally, the public disrespect (denounced by the
VC in a specific paragraph: VII. Pressure against the Judiciary) shown to judges of
the Constitutional Court by demanding their dismissal.34
This episode in the last grave institutional crisis related to rule-of-law issues
shows that even 6 years after accession, the question of the judiciary continued to
produce conflict and tension among the national political and judicial actors.
Although the country had achieved some progress in relation to the functioning
32
See page 3, Opinion CDL-AD(2012)026.
33
Decision n 38/2012 of October 2012. Romanian Parliament. Senate chamber.
34
See Opinion CDL-AD(2012)026 on the compatibility with constitutional principles and the rule
of law of actions taken by the Government and the Parliament of Romania in respect of other state
institutions and on the government emergency ordinance on amendment to the law no. 47/1992
regarding the organisation and functioning of the constitutional court and on the government
emergency ordinance on amending and completing the law no. 3/2000 regarding the organisation
of a referendum of Romania adopted in Venice, 14–15 December 2012.
of the courts, the idea of partial subordination of judges to the political power was
still embraced by some political leaders and their parties. According to some
scholars (Coman 2013; Crespy and Vershueren 2009), this was also part of a
more general opposition to the EU’s normative idea of the rule of law that
characterized several new member states.
Faced with this further attack on the ‘European rule-of-law values’, the EU was
weaker than before. The conditionality mechanism was almost over 6 years after
the accession. Thus, in this case (as in that of the crisis in Hungary) the EU called
for the CoE’s intervention (through the VC) to exercise additional external leverage
on the national domain.35
3.6 How Can the Failure Be Explained? Relevant Factors

and Conditions
The next section analyses the main factors that seem to account for the trajectory of
the Romanian case. Explanatory factors and judicial conditions are discussed by
distinguishing two phases: the pre-accession and the post-accession ones.
3.6.1 Credible Conditionality and Change Agents/Veto

Players in the Pre-accession Phase
As regards the EU’s action, conditionality, massively exerted in particular after

2004, was effective at least for the formal adoption of legislation. The most
important factor that appears to have influenced the formulation of measures
introduced in the two policy areas under consideration was the inclusion of these
issues in the safeguard clause (determinacy of the conditionality). Furthermore,
particularly after 2004, the EU’s actions with respect to Romania were generally
credible and consistent. The prospect of membership was credible, and so was the
use of conditionality, particularly with the institution of the safeguard clause
(Mungiu-Pippidi 2005; Pridham 2007; Noutcheva and Bechev 2008). Only when
the prospect of membership had become credible did the political forces begin to
launch the first processes for reform of national institutions. As of that moment, the
short-term objectives of the political forces in power coincided with those dictated
through the conditionality exerted by the EU.36 Furthermore, reform of the judicial
system had been blocked for years, and it was only when the hypothesis of
35
On this point see Dallara and Piana (2014).
36
Interview with the Director of the Rule of Law Program South East Europe, Konrad-Adenauer-
Stiftung, Bucharest, May 2008.
3.6 How Can the Failure Be Explained? Relevant Factors and Conditions 73
activating the safeguard clause began to circulate, in 2004, that political forces
started to adopt concrete measures.37
As for the national constraints, pre-accession Romania is considered the para-
digmatic case (Pridham 2007; Dallara 2010; Mendelski 2013) of how the EU’s
influence on judicial reforms can be strongly reinforced by the presence of change
agents or, on the contrary, annulled by the action of veto players.
The minister of Justice Macovei was indubitably, during the period between
2005 and 2007, the prototype of a change agent. She was trained as lawyer abroad
and until 2004 had been director of the Association for the Defence of Human
Rights—Helsinki Committee in Romania (APADOR-CH), one of the most resolute
and pugnacious NGOs in the country. Apart from this post, she had held the
positions of legal advisor to the Council of Europe and of expert for the Open
Society Institute (Soros Foundation).38 Hence Macovei had been part of the net-
work of NGOs and think tanks that had cooperated with the EU on various
occasions in the process of enlargement to the CEEC. At the time of her appoint-
ment, she stated that she had accepted the ministerial position “in order to imple-
ment the reforms that she had demanded for years, when she was the other side of
the barricade” (International Helsinki Federation for Human Rights 2005).
Macovei’s CV thus confirms the hypothesis that the presence of a change agent is
the direct result of a process of socialisation of political and/or professional figures
within either epistemic communities or international networks (Finnemore and
Sikkink 1998; Borzel and Risse 2000).
But the factor with the greatest impact on the pre-accession judicial reform path
was the presence of veto players (members of the CSM, of the Court of Cassation,
and of the Constitutional Court) that sought to maintain the status quo in relation to
the functioning of the judiciary by maintaining their alliance with the old guard of
the post-communist parties. The behaviour of these actors was a consequence of the
absence of a break with the non-democratic regime characteristic of Romania.39
More specifically, there had never been a rupture in the judicial and administrative
systems (Morlino 2003), which continued to exhibit many of the characteristic traits
that they had had during the Ceauşescu regime, especially their hierarchical con-
ception of the judge’s role. The Constitutional Court, the Court of Cassation, and
the CSM are the most clear instances of continuity with the aforementioned regime
(Dallara 2009). Despite the fact that these institutions were reformed so as to
guarantee the greater independence of the judicial system following the EU’s
37
Mungiu-Pippidi (2005) also points out that, the conditionality exerted by the EU was particu-
larly significant in the justice and anti-corruption sectors, and that the European Commission
repeatedly threatened to call membership into question on grounds of insufficiency in these
sectors.
38
Source: curriculum vitae posted on the Internet page of the Ministry of Justice on
20 January 2005.
39
This hypothesis has been verified by various authors who confirm that the characteristic feature
of the Romanian case is in the absence of a break with the previous regime. See particularly Linz
and Stepan (1996), Mattina (2004), Gallagher (2005).
dispositions, the magistrates co-opted to these institutions were the selfsame figures
that had been in office during the Ceauşescu regime and in the following decade,
and many of them had been directly appointed by the old political elite (Demsorean
et al. 2009). The fact that many judicial reform proposals were blocked on grounds
of unconstitutionality reflects the problem of state-capture by clientelistic elite
networks that still today is a legacy of the country’s past history. This legacy
consists of those informal structures (for instance, the permanent link between the
highest courts and politicians) that concretely limit state-capacity and stateness, as
explained in Chap. 1.
In the pre-accession phase, there was no conflict on EU membership per se
because all the national actors, both political and judicial, concurred on the objec-
tive of accession; instead, the conflict among national actors arose on the specific
content of the judicial reform and, in particular, on those aspects that would have
modified the status quo. This case demonstrates that adoption of the EU-driven
reforms was not, in fact, the result of a natural political action animated by a
conviction of legitimacy; rather, it was a strategic response to the EU’s demands.
3.6.2 Weak Conditionality and ‘Politics Above All’

in the Post-accession Phase
The analysis of the post-accession phase has instead demonstrated that the political
conditionality exerted by the EU drastically lost its efficacy once membership had
been acquired (Schimmelfennig and Sedelmeier 2004; 2005). It emerged from the
interviews conducted in Romania in 2008 that in the post-accession phase, national
politicians repeatedly emphasised—and included in their public statements—their
intention to reassess their authority in the national decision-making process without
having to submit to the iron laws of conditionality any more. On this point, Pridham
(2007), in a study on post-accession Romania, reports several statements by Roma-
nian journalists and columnists confirming that the attitude of the Romanian
political class towards the EU’s requirements drastically changed in the aftermath
of accession, and he emphasises that the reforms of 2006 were adopted for purely
instrumental purposes. According to the interviews conducted in Bucharest, min-
ister Macovei, who represented the connecting link with the international level (the
change agent), was tolerated only inasmuch as she was deemed useful for the
purpose of accession, and she was to be ousted as soon as the grip of international
control had been eased.40 After Macovei, no real change agent committed to
EU-driven reforms could be found. Moreover, as just mentioned, in the 2 years
after the accession, some of the political leaders in the parliament explicitly
declared that they did not accept the EU’s intrusion in matters of national politics
(Pridham 2007).
40
Interview with an attorney at law, member of So-Just, Bucharest, May 2008.
3.6 How Can the Failure Be Explained? Relevant Factors and Conditions 75
As for the EU, it was rather obvious that the instruments of political condition-
ality proved entirely ineffective in the post-accession phase. Whilst the checklist
technique used by the EU to monitor the country’s progress may have proved useful
in facilitating the formal adoption of legislation, it was entirely ineffective in the
post-accession phase. The threat of the safeguard clause was evidently not enough
to produce a concrete impact on the attitudes of the political class. Even the post-
accession Cooperation and Verification Mechanism was too weak to influence the
country in pursuing the requisite steps in the three ‘key-areas’ (judicial reforms,
anti-corruption, and organized-crime) being monitored.
Whilst in the case of Bulgaria, the EU adopted concrete measures by blocking its
access to European funds,41 it did not do so in the case of Romania. The European
Commission’s generally more benevolent attitude towards Romania, which was
perhaps more adept than Bulgaria at creating an institutional maquillage,42 rein-
force the position of the Romanian political class and weakened the role of the EU
as an actor of democratization. Only after 2009 did the EU being to issue decidedly
negative evaluation reports on Romania, pointing out that the situation of judiciary
and anti-corruption policies continued to be particularly critical: many reforms had
been made on paper but little real progress had been achieved; and reforms had
been poorly implemented (European Commission 2009).
Presence/absence of Results in terms of

Period EU conditionality mediating factors compliance
2000–2007 Reinforced condi- Veto players predominant (some Rule adoptions, but fake
tionality with parties, particularly the PSD; compliance with the
the safeguard CSM, Constitutional Court, EU requirements
clause Court of Cassation)
Determinacy and Change agents fundamental only in
credibility the phase of the formal adoption
of new EU-oriented legislation
No conflict on EU accession, but on
the content of the reforms
Strong legacies from the past in the
behaviour of the old-guard judi-
cial elites. Informal structure
affecting stateness properties
2007–2010 Weak conditional- No change agents No new reforms in spite
ity Political leaders questioning the of the safeguard
No credibility of EU’s intrusion on national issues clause
the post- No implementation
accession
conditionality
(continued)
41
At the end of June 2008 Brussels suspended a financial allocation of 183 million lev
(ca. 90 million euros) issued within the framework of the SAPARD programme, due to mis-
appropriations of these funds. In the month of March, a 50 million euro financial allocation under
the same programme had been frozen for the same reasons (Mangalakova 2009).
42
On this see Piana (2010).

2010–2012 Conditionality No change agents Some progress in terms
almost Continuing conflict on the EU’s of courts functioning
completely lost normative intrusion and judicial training
its effects New generation of more reform-
oriented judges
3.7 Conclusions
As Pridham (2007) recalls on analysing the various EU enlargements from a

comparative perspective, the case of Romania may be likened to that of Greece,
which, after joining the EU in 1981, encountered a series of problems in reforming
its administrative and political institutions largely due to a lack of cohesion of the
political class on European issues. The case of Greece’s accession, like that of
Romania, may in fact be seen as an example of politics above all (ibid., p. 7). On the
other hand, if we look at the more recent phases of the enlargement process, we can
find analogies with the cases of Bulgaria and Poland where, much as in Romania,
there were frequent moments of institutional imbalance (Stănciulescu 2008). In
Bulgaria, in particular, there have come to light several very grave cases of
corruption related to misappropriations of European funds involving figures in the
government (Mangalakova 2009).
As Sedelmeier (2006) notes, in cases where, in the pre-accession phase, the
adoption of norms is guided solely by strategic reasons—being focused, that is,
only on acquiring membership status without shared agreement on the norms
transferred—the tendency in reverse is apparent in the post-accession phase.
Pridham (2007) identifies the logic of such situations in what he terms an
impositional Europeanization or externally-driven democratization (Stănciulescu
2008) characterised by the resistance of political parties to reforms if these are not
closely related to a logic of utility. I Therefore, in light of the theoretical concepts
presented in Chap. 1, it is clear that the predominant logic in the process of
reforming Romania’s judicial and anti-corruption systems was based on net costs
and benefits assessment, rather than on commitment to the country’s moderniza-
tion. The Romanian case evidences, in fact, that national actors used EU condi-
tionality instrumentally to play internal conflict without guaranteeing adoption of
the required reforms.
As said in Chap. 1, judicial reforms are issues of high politics: they are crucial
for political actors and costly in terms of political bargain. In Romania, only if the
political elites agreed on EU accession (not only formally) and on the content of the
changes required could the EU incentives be used to introduce and implement
changes. Moreover, not only political actors were involved; there was also an
important professional group (judges) involved in this policy area. It was also the
References 77
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prosecutors some changes were introduced by using the resources and expertise
offered by the multitude of international networks of judges and prosecutors
working on specific judicial topics (Piana 2010). This is the case of judicial training,
for example, in which Romania has one of the most active schools in Europe (Piana
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double level of actors, with on the one hand political leaders increasingly
questioning the EU’s post-accession intrusion on their national rethinking of the
rule of law, and on the other, and a new generation of judges that, thanks to their
contacts with international networks, are going ahead with EU-inspired reforms
from below, seems to be a feature that will persist in the near future. The increasing
presence of more reformed-oriented judges43 may also be seen as the way to reduce
the power of those informal structures and constraints that are legacies of the past
(Elbasani 2013) and undermine stateness properties.
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Chapter 4
The Long and Disputed Judicial Reform
Process in Serbia: Legacies of the Past
and Predominant National Actors
This chapter describes political relations between the EU and Serbia from 2000 to
2012. It then focuses on the judicial reforms launched in 2001 in the context of the
Stabilization and Association Process. After highlighting the main stages of the
Serbian path towards achieving the status of candidate country, while also men-
tioning the main political developments, the chapter focuses on the process of
judicial reform.
In describing this process, the role of Serbian political leaders and their parties
will be emphasised in particular because they strongly influenced the outcomes of
the judicial reforms. In the last decade, political parties in Serbia still perceived the
judiciary as a potential political weapon. As a consequence, they constantly sought
to generate institutional solutions which would give them power over its function-
ing. The analysis confirms that the judicial reform outputs are still influenced by the
legacy of the Milošević regime. Legacies from the past are manifest in the resil-
ience of the judicial institutions, in the behaviour of judges, and in the attitude of the
political actors towards judicial reform. The reform process is reconstructed using
international organization records, Serbian newspaper articles, and semi-structured
interviews.1
In conclusion, the entire process will be summarized to show the specificities of
EU conditionality towards Serbia, as well as the presence of change agents and/or
veto players.
1
Two rounds of interviews were carried out. In the first round, held in Brussels (June 2006), two
EC functionaries working on judicial reforms in the Balkan countries, a legal advisor of the EC
(DG Enlargement) working on the CARDS Regional Programme, and a political advisor at the
Stability Pact for Southern Europe were interviewed. In the second round, held in Belgrade
(October 2006), the President of the Judges Association of Serbia, the former President of the
Judges Association of Serbia, the Advisor of the President of the Supreme Court of Serbia, the
President of the Center on Democratic and Liberal Studies, the Head of the EU Law Harmoniza-
tion Department within the Serbian European Integration Office, and a member of the Center for
Non-Violent Resistance were interviewed.

82 4 The Long and Disputed Judicial Reform Process in Serbia: Legacies. . .
4.1 Serbia and the EU2
During the 1990s and the Yugoslavian war, the EU started to focus its attention on
Serbia and the other Balkan countries that participated, together with other inter-
national actors, in actions of conflict containment. Nevertheless, the official begin-
ning of EU–Serbia political relations is conventionally considered to be the year
2000 with the collapse of the Milošević regime and the so-called ‘October Revo-
lution’ (Dallara 2009; Marčeta 2010a; Noutcheva 2012).
The isolation of the country, the economic crisis of the late 1990s, and the
military conflict with NATO drastically reduced public support for Milošević and
his government. In this context, the opposition parties were able to organize an
effective electoral campaign by choosing Vojislav Koštunica, the leader of the
Democratic Party of Serbia (DSS), as the candidate to stand against Milošević. As a
consequence, the Serbian Democratic Opposition (DOS) coalition won the 2000
elections. Eighteen parties made up the DOS coalition. The DS (Democratic Party
of Serbia) led by Djindjić and the DSS led by Koštunica were the largest parties. On
6 October 2000, Koštunica stated during his first official speech that he was willing
to create an ad interim government. This lasted until December, when official
elections took place and Djindjić was nominated Prime Minister of a majority
government in which all the parties of the democratic coalition participated
(Dallara 2009, 2010).
4.1.1 The Reformist Honeymoon (2000–2003)
Shortly after the October Revolution of 2000, Serbia became part of the Stabiliza-
tion and Association Process (already described in Chap. 1) and, in accordance with
the 2000 Council of Feira, acquired the status of a potential candidate for EU
membership. Overall, in the past 13 years, EU–Serbia relations have been charac-
terized by discontinuity and difficulty, with several substantial ups and downs. In
2000–2001, from a political point of view, the country was pervaded by ‘reformist
euphoria’ or, as some experts suggest, by the ‘honeymoon’ of Serbian politics
(Hiber 2005; Marčeta 2010a).3 This was the only period of strategic thinking in
terms of rule-of-law reforms because there was relative political stability within the
government coalition (Marčeta 2010b). In the aftermath of the transition, in line
with the specific character of the SAP conditionality, the EU’s strategy towards
Serbia was mainly focused on its troubled political relations with Montenegro and
on collaboration with the ICTY.
2
The first part of this chapter is based on data and analyses already presented in Dallara (2009)
and Dallara and Marčeta (2010).
3
This view was confirmed in many interviews held in Belgrade. See Footnote 1.
4.1 Serbia and the EU 83
As for the Montenegro issue, in 2002 secessionist pressures caused the breakup
of the Federal Republic of Yugoslavia (FRY), and in 2003 a massive diplomatic
intervention organized by the EU led to the creation of the State Union of Serbia
and Montenegro. This statehood issue and the obligation to cooperate with the War
Tribunal immediately became the most controversial and critical aspects of the EU–
Serbia relationship and proved to be the most difficult problems for the Serbian
political elite to deal with (Batt 2005; Vejvoda 2004). In fact, in June 2001, the
differing attitudes of the parties towards this issue, especially towards the arrest and
the extradition of Milošević, caused the breakup of the DOS coalition. The absolute
necessity to cooperate with the ICTY was in fact immediately perceived as an
attempt to undermine state sovereignty. Consequently, nationalistic feelings
quickly regained consensus. During this phase, the stability of the country
decreased with the assassination of Prime Minister Djindjić and the subsequent
state of emergency. The reforms were halted, and some of the results previously
achieved in terms of democratic improvement were outweighed by many civil and
political rights violations during the state of emergency (Marčeta 2010a). In 2003,
huge cracks emerged in the fragile Serbian democracy, especially in relation to the
military and para-military forces and the connection with the organised crime
network (Dallara 2007).
4.1.2 The Fragile Democracy and the Questioned EU

Integration (2004–2008)
In 2004, after parliamentary elections, Koštunica was appointed Prime Minister of a

new government and Tadić (DS leader) President of the Republic. Hence the
DS-DSS coalition was still in place. Nevertheless, as Marčeta (2010a) underlines,
the period from 2004 to 2005 can be considered an extended pause in democratic
reforms: on the one hand, the nationalistic anti-EU parties (especially the Radical
Party) were progressively increasing their power; on the other, the EU’s attitude
towards Serbia was ambiguous. The only selective improvements in meeting the
EU’s requirements were limited to rule adoption or, rather, to a ‘façade’ of rule
adoption (Dallara and Marčeta 2010). In fact, until 2007, EU conditionality con-
tinued to be perceived mainly as a form of forced cooperation with the International
Criminal Tribunal for the former Yugoslavia (Jovanovic, J. (2006) EU rule of law
promotion in Serbia. Unpublished working document, Belgrade.). This negative
perception of the EU was particularly stressed by those parties that were publicly
anti-EU and acted as veto players to inhibit the adoption and implementation of the
EU-driven reforms. Among the Serbian parties, the Radicals were the principal
actors opposing EU integration. They envisaged close relations with the former
communist countries, namely Russia, as an alternative to integration into the
Western community (Crisis Group 2006; The Economist 2006). The strategic
vision of integration into the EU was perceived by substantial parts of the Serbian
political elites as weak and insufficiently attractive because of the high political
fragmentation, complemented by practical difficulties relative to the reforms
required by the EU. Domestic politics continued to be dominated by the state-
building issue, in particular by relations with Montenegro4 and the Kosovo region.
Nationalism, foreign policy, and the territorial organization of the state were the
main issues dominating Serbian political debate, and the differing approaches to
these issues marked the main differences among the parties (Marčeta 2010a). The
dominant political cleavage was not between left and right in socio-economic
terms, because almost all parties belonged to the centre-right. Even today, the
composition of the party system in Serbia still reflects the country’s conflicting
historical and cultural developments.
From 2005 to 2007, during the Koštunica government, apart from formal
declarations, the incentives offered by the EU were perceived as unattractive and
unfair compared with those offered to other countries. This situation had a negative
impact on the determination of political actors and the public perception of the
meaningfulness of the EU integration process. The prospect of EU membership was
an insufficient incentive for civil servants to adopt and implement the necessary
reforms (Magen and Morlino 2009).
In political terms, the period 2006–2007 was the most difficult for Serbia since
the democratic revolution of 2000 (Freedom House 2007). Factors which made the
last 2 years so turbulent and crucial included the dissolution of the State Union with
Montenegro in April 2006 and the suspension of negotiations with the EU within
the Stabilization and Association process due to the lack of collaboration with
the ICTY.
The EU reacted strongly to the non-compliance of Koštunica and his govern-
ment, especially on the ICTY issue, by giving a strong signal and officially
suspending negotiations with the country.
In January 2007, parliamentary elections confirmed that Serbia was going
through a troubled period in terms of national politics. The Serbian Radical Party
won the majority of votes with 28.7 %, followed by Tadić’s DS (22.9 %) and then
Koštunica’s DSS with New Serbia (16.7 %).5 The government was formed only in
May 2007 after 4 months of difficult bargaining and riotous debate. In the end,
DSS-New Serbia, DS and G17+6 agreed to form a coalition government, excluding
the nationalist Radicals. Highlighting the contentious nature of the accord is that the
coalition was agreed only 4 days before a deadline for new polls expired (BBC
News 2007). The EU exerted strong pressure on the DS to form a government with
the DSS in order to keep out the radicals, but it was quite clear that this coalition
4
The referendum held in May 2006 established the definitive split between the two countries.
5
See the Parties and Elections in Europe Database online at http://www.parties-and-elections.eu/
serbia.html
6
G17 Plus is a liberal-conservative Serbian party. Its original core consisted of a group of
17 experts (economists, historians, and political scientists) constituted as an NGO in 1997. The
organization officially became a political party in 2002, and was initially led by Miroljub Labus
(Barlovac 2012).
was too weak to guarantee a democratic future for Serbia (Crisis Group 2007). This
is an example of the behaviour that the Europeanization scholars of enlargement
(Noutcheva 2012) term the ‘differential empowerment’ of national political actors
to pursue their own goals of security and political stabilization of the area.
The ideological differences between DS and DSS increased especially when the
issue of Kosovo’s independence started to be considered and again this highlighted
how doubts and divisions about the EU and integration in the West were still the
cause of conflict among the Serbian parties (The Economist 2007). Although
Koštunica’s DSS was, in general, moderate in its public discourse and formally in
favour of EU integration, it was closer to the nationalist bloc with regard to the most
sensitive issues of Serbian foreign policy. These issues were resistance to Kosovo’s
independence and opposition to cooperation between the International Criminal
Tribunal and the former Yugoslavia (Petritsch et al. 2009). The shift in the
Koštunica approach to nationalism was further exacerbated by Kosovo’s declara-
tion of independence in 2008 (Marčeta 2010b). Recognition of Kosovo’s indepen-
dence immediately became another key issue on which the EU sought to use its
bargaining power relative to EU accession. This issue, together with other domestic
problems (including an impending economic crisis), led to the break-up of the
DS-DSS coalition slating early elections.
4.1.3 Tadic´ and Improvements in the Brussels-Serbia

Dialogue (2008–2012)
At the beginning of 2008, new presidential elections were called following the
requirements of the 2006 Constitution, and Tadić quite easily gained re-election as
President, in the second round, with the slogan “Let’s win Europe together”. In the
parliamentary elections, Tadić formed a new explicitly pro-EU coalition named
“For a European Serbia” and Koštunica was forced to remain with the nationalist
bloc. The negotiations under the SAP (resumed in late 2007) constituted a first step
towards the EU with the Stabilization and Association Agreement (SAA) signed in
April 2008, just before new parliamentary elections. According to some analysts
(Cvijic 2008; Marčeta 2010b); this timing was deliberately chosen by the EU in
order to give a positive signal to Serbia and to strengthen the pro-EU political
forces. The Tadić coalition (formally led by another DS member) in fact won the
majority with 38 %,7 leading to the entry of a new government headed by
Cvetković.
This moment can be considered a symbolic new start in the EU–Serbia relation-
ship (Batt 2009). A concrete consequence of this new framework was the first arrest
of one of the indicted war criminals, Radovan Karadžić, in Belgrade. Serbian
7
Source: Parties and Elections in Europe Database online at http://www.parties-and-elections.eu/
serbia.html
leaders internationally declared that the arrest of Karadzic (responsible for the siege
of Sarajevo and the Srebrenica massacre of 1995) was a condition for Serbia’s
progress towards European Union membership (Reuters 2008). Consequently, one
of the first moves by the new Cvetković-Tadić ‘tandem’ was Parliamentary ratifi-
cation of the SAA. The Serbian Radical party split over the ratification because only
some of its members voted in favour.8 This can be seen as another success for the
EU in modifying the national political domain. The empowerment of the pro-EU
forces led to a reshuffling of the Serbian party system which diminished the power
of the nationalist bloc. After Karadzic’s arrest and the SAA’s ratification, the EU
Enlargement Commissioner, Oliver Rehn, officially expressed the first positive
evaluation of Serbia’s progress. He declared that the arrest was an essential step
in Serbia’s cooperation with the Hague Tribunal, and that it should be acknowl-
edged with the practical implementation of the SAA, starting with the relevant
Interim Agreement on Trade (Petritsch et al. 2009).
At the end of 2008, it seemed that Tadić, whose position was further strength-
ened in the 2008 elections, was the ‘right man’ that the EU had been seeking since
at least 2003. As will be explained below, President Tadić, especially from 2008 to
2010, acted as a change agent and contributed to a significant improvement in EU–
Serbia relations. In fact, in November 2008, the European Commission issued an
annual progress report for the first time more optimistic than the previous ones.
Some concerns remained, but also some areas of progress were listed (European
Commission 2008).
In terms of national politics, the Kosovo issue dominated public opinion in
2008–2009, but the new government, together with Tadić, sought to neutralize
the problem by waiting for the International Court of Justice to rule on Kosovo’s
declaration of secession. In late 2008, the Serbian government officially filed a
request with the United Nations for a non-binding opinion of the International Court
of Justice on whether the declaration was in breach of international law. This action
succeeded in temporarily diverting attention from the Kosovo issue. Moreover, in
the latter part of 2009 two further positive signals were emitted by the EU: the entry
into force of the Visa liberalisation with Serbia, and some favourable support by EU
member states for submission of the application for EU membership (Marčeta
2010b). In particular, Spain (one of the five EU countries that did not recognize
Kosovo’s independence), which assumed the EU Presidency in 2010, publicly
expressed its support for the submission of the membership application in late
2009. Thus, Serbia applied for membership of the EU on 22 December 2009.
It is worth mentioning that the EU strategy from 2008 gradually shifted from a
strong emphasis on the ICTY issue to other policy areas in which Serbia’s compli-
ance was more visible, at least in terms of rule adoption. This strategic change was a
way to offer clear support for pro-EU governing parties and to diminish the
nationalist forces that focused their anti-EU campaign on the ICTY cooperation
8
Some of the members created a new party named the Serbian National Party which was more
government-oriented and had a less extremist agenda.
issue. The period 2006–2010 was characterized by the intensive enactment of bills
into law, although many of them were still not completely in line with the EU’s
requirements; this was the case, for example, of laws related to the judicial reforms
(ibid.). Thus, the strategic empowerment of the pro-EU national actors, seeking
dialogue and collaboration at the expense of the ICTY issue, contributed to formal
progress in the membership process, at least in terms of EU rule adoption
(Noutcheva 2012). Positive signals and incentives continued in 2010–2011 when
EU member states decided to start ratification of the SAA and the Council of the EU
agreed to forward Serbia’s application to the European Commission, thus launching
the pre-accession phase de facto.
Serbia responded to these incentives with two very important arrests. In May
2011, Ratko Mladić was arrested and shortly afterwards extradited to the ICTY in
The Hague. Then Goran Hadžić, another Serbian indicted for war crimes, was
arrested in July. These last steps removed the final barriers to Serbia’s candidate
status. At the end of 2011, in fact, the European Commission recommended that the
Council of the EU should grant Serbia the status of candidate country given the
progress achieved to date (European Commission 2011). The Commission also
recommended that negotiations for accession should be opened as soon as further
significant progress towards normalizing relations with Kosovo had been achieved.
The European Council postponed the decision on candidate status for more than a
year because some member states resisted Serbia’s application. In fact, candidate
status was granted only March 2012. The period 2008–2012 can thus be considered
the most positive one in EU–Serbia relations, with the EU able to exercise signif-
icant leverage at least in empowering the national domestic actors in favour of EU
integration.
However, this positive trend was soon reversed: a development which revealed
that Serbia is a highly distinctive case and has not been linear in its democratization
path. From 2010 to 2011 the radicals and the nationalist forces were able to regain
popular support by exploiting the ongoing? economic crisis, with high unemploy-
ment rates and social problems, as a means to revitalise their position. In February
2011, thousands of nationalist supporters rallied against Serbia’s pro-Western
government demanding early elections. The nationalists promised economic recov-
ery and strongly criticised the country’s integration with the EU (CBC News 2011).
4.1.4 Social Crisis and the Return of Nationalist Parties: A

Peculiar Path Towards the EU? (2012–2013)
These protests and events continued for the whole year, but the elections were
definitively scheduled for May 2012. In the meantime, the nationalist party led by
Nikolić SNS was able to organize a pre-election coalition with other nationalist
parties and the former Socialist party of Milosević. Pre-election polls indicated that
the coalition would perform strongly (B92 2011).
In April 2012, Tadić decided to resign, with the consequence that presidential
elections would now coincide with the parliamentary ones. Despite the surge of the
nationalists, the EU, and the international community were quite confident that
Tadić would be re-elected. The presidential elections were finally won by the
nationalist leader Nikolić, while the leader of the socialist party took office as
Prime Minister, once again challenging the Serbian route to Europe. Shortly after
the election, Nikolić, conscious of the potential danger of moving away from the
EU, declared that Serbia would not stray from its EU path. His strong nationalist
positions9 and clear ideas on Kosovo’s independence notwithstanding, Nikolić was
determined to forge ahead along the path to the EU. Given that the EU had made
“visible and sustainable improvement in relations with Kosovo” (European Com-
mission 2012), as a pre-condition for opening negotiations Nikolić agreed to
participate in EU-sponsored talks with Kosovo. Between 2012 and 2013, the
Serbian premier met his Kosovar counterpart several times, and in February 2013
Nikolić agreed to participate in the first official meeting with the Kosovo leader
Jahiaga under mediation by the EU. Although at this stage the meetings had only a
symbolic significance, it seems that the Serbian leader seized the opportunity
offered by the EU to establish contact with Kosovo.
Recent analysis (Janjić 2013) has pointed out that the current behaviour of the
Serbian leaders (the President and especially the Premier—the socialist Dačić—and
the Deputy Premier Vučić) is paradoxically more concrete than Tadić and the
previous government in fulfilling some of the EU’s requirements, for example, by
accepting the EU-mediated dialogue with Kosovo, and in pursuing an intense anti-
corruption campaign,. The paradox consists in the fact that the current leaders
continue to use a political rhetoric that is not explicitly in favour of EU integration.
In their public speeches they continue to declare that they will go ahead with
important reforms (among them the Kosovo issue and anti-corruption) because
these are crucial for guaranteeing better living standards for citizens and economic
progress, and not explicitly for EU accession. For its part, Brussels accepts this
behaviour and continues to press the Kosovo issue. It seems that the SNS party has
been able to construct and execute a strategy of maintaining good relations with
Brussels without embracing a clear public position in favour of EU integration
(Janjić 2013).
9
In June 2012, he stated on Montenegrin television that “there was no genocide in Srebrenica. In
Srebrenica, grave war crimes were committed by some Serbs who should be found, prosecuted and
punished.”(BBC News 2012).
4.2 Background Conditions: The Judiciary Under Milošević 89
4.2 Background Conditions: The Judiciary Under

Milošević
Prior to analysis of the judicial reform process, it is useful to recall the main features
that characterized the functioning of the Serbian judicial system during the
Milošević regime. These features will be of particular importance in accounting
for the past regime’s legacies in these reforms.
As already described in Chap. 2, during the Socialist Federal Republic of
Yugoslavia (SFRY)10 the judiciary was quite marginalized by the prevalence of
party mechanisms and other non-institutional channels. Nevertheless, with refer-
ence to Serbia, some of the experts interviewed said that the conditions of the
judiciary were better during the SFRY than during the Milošević decade. The
experts underlined in particular that judges were more professional and skilled;
the influence exercised by the party was focused on ‘political cases’, while ordinary
justice, especially during the 1960s, functioned quite well (OSCE 2000; Lilić
2010). The situation progressively changed during the 1970s and the 1980s until
the collapse of the judiciary in the 1990s.
“In the Communist period the judiciary was really professional and skilled. The Communist
elite was interested only in short trials on so-called politically sensitive issues, these were
trials against everyone who offended Tito or the party, or everyone who had political
aspirations. . .Apart from trials of this type, the party was not interested in lawsuits and in
ordinary justice. . .thus the judges didn’t perceive (about ordinary justice) any strong
pressure by the executive. Then the 1990s came, and Miloševic´’s intention was to ruin
everything. The first mechanism for ruining everything was to cut salaries, so that many
good judges left the judiciary and became private legal representatives.” (Interview with
the President of the Centre for Liberal Democratic Strategies, Belgrade)
From an organizational point of view, even after 1991 Milošević maintained all
the institutional structures of the SFRY period intact. The main texts for organiza-
tion of the post-SFRY judicial system were the 1991 Constitution and the 1991 Law
on Courts. Under the latter, the Minister for Justice was responsible for the proposal
of candidates, who were then elected by the National Assembly. As mentioned
above, recruitment was based on the more or less explicit criterion of loyalty to the
party and the regime. The judiciary played no part in the selection and assessment
of magistrates, also because political exponents devoid of judicial education and
experience were often nominated as judges. The judicial system that emerged from
the first post-SFRY transition continued to work on the previous pattern. It was in
fact subordinate to the dominant party. This was no longer the Yugoslavian
Communist Party, but Milošević’s socialist party (Miller 2000). Although the
judges succeeded, in the first years of the regime, in continuing to exist as a fairly
independent body, they suffered from acts of repression in the last phase, when the
10
The country was proclaimed in 1943 and named Democratic Federal Yugoslavia. In 1946, it
became the Federal People’s Republic of Yugoslavia and in 1963 the Socialist Federal Republic of
Yugoslavia (SFRY). In 1991 it was then renamed Federal Republic of Yugoslavia.
regime became increasingly totalitarian. The room for independence and the lack of
a totally impermeable and continuous system of control sometimes allowed judges
to make decisions against the will of the regime. In Serbia, for instance, in 199611
some courts legitimated the victory of the opposition in a local election (Levitsky
and Way 2002). The magistrates guilty of this act of rebellion were, however,
immediately dismissed. Milošević made use of repressive and punitive actions from
the first half of the 1990s onwards.
Milošević’s purge of the entire judicial system started in 1997–1998 and ended
in 2000, when the crisis was clearly approaching. During this period, about 900 out
of 2,000 active judges in the entire Serbian judiciary system were dismissed and
replaced. In 1999, 13 judges were dismissed because of their active involvement in
the Serbian Judges Association. This Association, which was initially formed by
magistrates who had opposed the manipulation of the outcome of the 1996 election,
was not legalised for several years. Following the dismissal of these 13 judges, the
association suspended its activity. It reopened only in 2000, when it was finally
registered as a legally recognised association.
The judicial system that emerged from the 10-year Milošević government was
weak from a professional as well as material point of view. Many of the judges that
had somehow opposed the regime’s demands had been dismissed (Pavlovic 2003).
Those who were not removed acted only according to the will of the regime. After
1996, no judicial decision was made that could in any way oppose Milošević’s
party. Immediately after Milošević had been deposed, the first step taken by the ad
interim Koštunica12 government was to re-establish the legislation of the old
judicial system and to cancel all the decisions by Milošević that had resulted in
the dismissal of judges who had opposed election fraud and manipulation by the
regime (especially the 1996 election).
It is worth mentioning that a potential purge of the judiciary became an urgent
issue after the October Revolution. However, the transition leaders decided to
reform the system without drastically interfering with the judicial body. The ad
interim government adopted a ‘forced dismissal’ policy by inviting those judges in
important positions to leave their office. However, although these measures may
have been executed in sweeping and absolute terms, they were never on the scale of
the purges enacted in other countries like, for example, Poland (Magalhaes 1999).
One of the experts interviewed13 underlined that, if a drastic lustratia14 had been
11
The local elections of 1996 saw the democratic opposition win in 36 municipalities, Belgrade
included. Milošević did not recognise this victory and called for new elections. His action
provoked strong reactions from civil society. The protests stopped only when Milošević was
forced to recognise the opposition’s victory in the early months of 1997 (Marčeta 2010a).
12
On 6 October 2000 Koštunica, during his first official speech, declared that he was willing to
create an ad interim government. This lasted until December, when official elections took place
and Djindjić was nominated prime minister of a majority government in which all the parties of the
DOS coalition participated.
13
Interview with a Serbian expert, Political Advisor at the Stability Pact for Southern Europe, June
2006, Brussels.
14
See Chap. 1 for definition of the term.
4.3 Judicial Reforms from 2001 to 2011: Political Parties as Dominant. . . 91
performed, the Serbian judiciary would had been halved. The lack of an adequate
number of candidates suitable for the role of magistrate was one of the reasons for
undertaking the organisational reform path without a lustratia.
4.3 Judicial Reforms from 2001 to 2011: Political Parties

as Dominant Political Actors15
The first significant stage of judicial reform was accomplished in November 2001
with the launching of an important set of judicial system-related laws. These
reforms basically consisted of five laws in different areas (1) Law on Judges;
(2) Law on Public Prosecution; (3) Law on High Judicial Council; (4) Law on
courts organization; (5) Law on Seats and Districts of Courts and Public Prosecu-
tor’s Offices (all published in the Official Gazette of Serbia, no. 63/2001). Hiber
(2005) highlights that the circumstances in which these laws were adopted show
that already in 2001 the democratic alliance was facing serious obstacles to reform
of the judicial system. These laws were proposed by a parliamentary group belong-
ing to the DSS (Koštunica’s party). The Minister for Justice (belonging to
Djindjić’s Democratic Party) organised a work group to prepare an alternative
proposal to that of the DSS. However, after just a few weeks the National Assembly
approved this set of laws and requested only a few adjustments. Hiber (2005)
underlines that the laws were accepted by the DOS coalition parties in exchange
for a favourable vote on the Work Law legislation, approved during the same weeks
from Koštunica’s party.
Overall, the five laws, in their original drafting, should have introduced some
fairly major changes. The Law on Judges of 2001 (Art. 42) led to the introduction of
a new self-governed body meant to play an important role in the recruitment
process. Article 46 stated that the National Assembly should elect only the candi-
dates proposed by the HCJ. The HCJ, according to the law, would be responsible for
announcing the election of any magistrates in the Official Gazette and collecting
data and information on these candidates from bodies in which they had previously
practised. The law on HCJ, on the other hand, should have allowed for the creation
of that body. According to the law, this body should assume an important role in
recruiting and selecting magistrates. The Law on Judges stated that the National
Assembly was obliged to nominate magistrates only via candidatures proposed by
the HCJ.16 Nevertheless, the Law on Judges provided for the creation of another
body, the Grand Personnel Council (GPC). This differed from the HCJ in that the
15
The first part of this subsection is based on the analysis already presented in Dallara (2007).
16
In the case the candidatures proposed by the HCJ would be rejected by the National Assembly, it
had to reconsider them and only in case of a second negative assessment to propose some
new ones.
latter took all decisions concerning the dismissal or the termination of a judge’s
function. The reason for the creation of this different body for the dismissal/
termination procedures is found in the 1991 Constitution:
“In 2001 there were problems in having proposal and dismissal competencies in the same
body because the1991 Constitution didn’t allow this. Thus created was a separate body that
would have competences only to propose appointments and another one with competences
on dismissal/termination procedures.” (Interview with the President of the Judges Associ-
ation of Serbia)
Already in July 2002, the Serbian Democratic Party (DSS) proposed a set of
amendments to the five laws on the judicial system. The National Assembly
adopted such amendments at once. Their purpose was to change Article 46 of the
Law on Judges by establishing that the National Assembly could reject candida-
tures proposed by the HCJ and nominate other candidates appointed by an ad hoc
commission that would be created within the National Assembly. This was there-
fore an attempt to create another body, directly connected to the National Assem-
bly, which would enable the parties to control the nominations more directly. In
September 2002, the Superior Court began the procedure to request judgement on
the constitutionality of the amendments and shortly afterwards the Constitutional
Court suspended some of them. At the beginning of 2003 the DSS (Koštunica Party)
proposed further amendments aimed at reaffirming the role of the National Assem-
bly in the recruitment of magistrates. The Constitutional Court again suspended
some of these amendments approved for the Law on Judges. At the beginning of
2003, the HCJ had not yet been established because of delays and problems in
reaching agreement on the choice of the members (Dallara 2007; Lilić 2010).17
The description of these first 3 years after transition already highlights the lack of
a clear and shared strategy for reform of the judicial system. Djindjić, who saw the
restructuring of the judicial system and its rules as a symbolic change and a new
start, especially supported the passage of these laws on the judicial system. Djindjić
initially represented a potential change agent by virtue of his entirely
pro-democratic culture. Since the beginning of his mandate he had insisted on the
importance of fairness in the judicial process and of the supremacy of the rule of
law. However, it became clear that any action in this regard was being nullified by
the exacerbated level of conflict among parties in relation to this issue. The attempt
to reaffirm the power of the National Assembly over the nomination of judges to the
disadvantage of the self-governing body was the thread running through the various
amendments (Lilić 2010). However, some experts underlined that, apart from the
scant powers given to the HCJ, concerns remained about the rule on the composi-
tion of the HCJ itself and about its representatives. In this respect one of the experts
interviewed said:
17
As Hiber (2005) and the OSCE report state (2003), at the end of the various disputes regarding
institution of the CSM, the Superior Serbian Court maintained the main power over the choice of
the CSM’s members. The judges of the Superior Court are nominated directly by the National
Assembly.
“Only the Supreme Court elects them (HCJ members). They are badly selected; their
colleagues do not elect them. They do not represent all courts of all levels and types.
There are no clear criteria on the competences and integrity of these judges. The govern-
ment’s influence on the HJC members remains very strong. They only look up and think
what the Ministry will ask them. Not all of them, but the great majority.” (Interview with the
former President of the Judges Association of Serbia).
The 2003 OSCE report on judicial reform listed the opinions of a sample of
magistrates (150 judges and 70 public prosecutors) on the 2001 set of laws. The
magistrates agreed that such laws represented a step forward in judicial reform.
However, the amendments approved in 2002 immediately nullified these achieve-
ments by restoring more power to the National Assembly (OSCE 2003). The
assassination of Djindjić worsened the situation. This ‘interregnum year’ was
another stalemate18 for judicial reform, since the debate on the 2001 set of laws,
which had not yet been applied, was suspended. The first months of 2004, after the
new Koštunica government assumed office, seemed to give new impetus to over-
coming the suspension of progress due to the state of emergency. During 2004–
2006 as a consequence of increasing EU pressure on judicial issues, it seemed that
the Serbian government was trying to show compliance, even if only from a formal
legal standpoint, with certain EU requirements regarding judicial reform. As in
other policy fields, so in relation to judicial reforms these were the years of ‘fake
compliance’ (Noutcheva 2012; Dallara and Marčeta 2010). In April 2004, the
government proposed further amendments aimed at updating the Law on Judges
on the basis of the various sentences delivered by the Constitutional Court during
the previous years. These new amendments gave the power to propose candidates
for nomination as magistrates and court presidents back to the HCJ. However, in
truth, the government rejected several nominations by the HCJ until December
2004. The HCJ was then practically prevented from performing its functions. In the
same year, the government tried to establish a new body (Court Administration
Council) directly controlled by the Minister of Justice that would have been
responsible for selecting the presidents of the courts. The Constitutional Court
immediately ruled that this disposition was unconstitutional and blocked its enact-
ment (Lilić 2010).
At the end of 2004, the Commissioner for External Relations of the EU explicitly
called for a relaunching of the relationship between the EU and Serbia in order to
give new democratic impetus to the country. In spite of this favourable opportunity,
at the end of 2004 the EC’s evaluation on the functioning of the judiciary was again
negative. According to the EU, no substantial reforms had been approved and the
influence of the political parties over the judiciary continued to be high and visible.
18
Several articles in daily newspapers and almost all the reports of humanitarian agencies
highlighted that during the state of emergency, the Serbian government explicitly violated the
human rights of its citizens. In the days following the murder of Djindjić a particularly serious case
was registered: the Parliament dismissed 35 judges without receiving permission from the Supe-
rior Court, which was formally necessary. As a consequence, the President of the Superior Court
resigned.
A definitive text for the judicial reform strategy was finally presented by the
government in April 2006 and shortly afterwards approved by the National Assem-
bly. The government pressed for adoption of this strategy and affirmed that it was
an important step in the judicial reformation process. However, once again the
crucial issues were the recruitment rules and the self-governing functions (Mitev-
Shantek 2006). The government approved the strategy to comply with the EU’s
requests since 2004. The drafting of the strategy was the direct result of work by
international donors—some of them, such as GTZ (Germany), working with EU
funds—and by American consultants such as Booze Allen Hamilton. The Judges
Association was not involved in the drafting of the strategy, although it prepared
documents and papers in order to integrate it (Mendelski 2010). One of the first
aspects addressed by the 2006 strategy concerned the self-governing body. The
need to create a single body responsible for the recruitment and status of magis-
trates and the need to overcome the previous situation where different institutions
and functions had overlapped were highlighted in the reform strategy. In this
regard, the strategy suggested the creation of a body called the High Court Council
(HCC) which would have to be constitutionally recognised, and which would
maintain a functional connection with the Ministry of Justice (Lilić 2010). The
HCC would be divided into two different commissions, one for the judges and the
other for the prosecutors, and it would be required to perform a ‘decisive’ role in the
nomination and promotion of magistrates, in the disciplinary procedures
concerning the material status of magistrates, and in those regarding their dismissal.
The Strategy also presented a long preface in which it was acknowledged that the
selection procedure of magistrates was still influenced by political pressure and that
the lack of clear criteria for their selection had been an obstacle to the transparency
of the process (ibid.). The Strategy specified that precise references to the selection
of magistrates made in the Constitution would have increased their binding power.
In spite of the Strategy’s approval in May 2006, for most of the year few of its
provisions were implemented because the government was focused on other issues,
particularly the drafting of the new Constitution. In 2006, one of the experts
interviewed affirmed:
“Judicial reform is not a priority here in Serbia for politicians. The top priority is Kosovo
and who will stay in power and or gain power. Everything else is not of big importance.
Concerning the adoption of the National Strategy we can say that we almost have
consensus on that text. There is something that could be improved, but it can be considered
a good basis to improve the judiciary. The problem is that it is just on paper. . .Several
months have already passed since the adoption and nothing has been done. We can already
see some acts of the government, that they are opposing the aim of the strategy.” (Interview
with the President of the Judges Association of Serbia).
The new Constitution, approved by a national referendum at the end of October

2006, also made substantial changes to the judiciary. The Constitution mentions, for
the first time in Serbian history, the existence of a self-governing body for the
judiciary that would be in charge of appointment and promotion procedures.
However, no clear provisions on that body were included. Many of the innovations
contained in the Strategy and in the new Constitution needed, in fact, other
enforcing laws for their implementation. The EU’s assessment of this situation was
expressed in its 2006 Progress Report affirming that “the new Constitution presents
some areas of concern, notably the lack of objective mechanisms free of political
influence to appoint, promote and dismiss judges and prosecutors” (European
Commission 2006a, b). In spite of this (and a few other areas of non-compliance)
the EU decided to resume the SAA negotiations with the Serbian government in
June 2007.
The situation, also in relation to judicial reform, changed slightly after 2008 with
the empowerment of the pro-EU elites guided by Tadić. Meanwhile, the EU started
to press more decisively for judicial reforms, having learned from its experience
with Romania and Bulgaria, in which reform of the judiciary remained the EU’s
major concern even after the accession (Pridham 2007; Noutcheva and Bechev
2008). Understanding the EU’s behaviour, President Tadić publicly called for
judicial reform in the international press. He underlined that “Without success in
these fields, there is no chance of Serbia becoming a EU member.” Moreover, he
strategically added that reform of the judiciary was essential to produce changes in
terms of quality and values in Serbian society. Issued shortly thereafter was new
draft legislation on the judiciary which contained laws on Organization of Courts,
on High Court Council, on Judges, on Public Prosecution, on the State Prosecutorial
Council and finally, on the Seat and Territorial Jurisdiction of Courts and Public
Prosecutor’s Offices (OSCE 2011). The drafting of these laws was massively
assisted and guided by the multitude of donor programmes that had been working
on Serbian judicial reform since 2005. Through funds from the European Agency
for Reconstruction (EAR),19 or even with self-funded projects, many of the best-
known international donors had been working on the Serbian case. Among them
were the American Bar Association, the U.S. Agency for International Develop-
ment (USAID), OSCE and Council of Europe (Dallara 2007; Mendelski 2010).
Because these laws implemented the content of the 2006 judicial strategy, in some
respects they represented a step towards meeting the EU’s requirements and an
attempt to modernize the justice system.
The laws entered into force only in 2010, and some of the provisions were
implemented quite rapidly. For example, the law on Organization of Courts dras-
tically reduced the number of courts (from 168 to 64) and introduced a new
institutional framework for the national judicial system composed of basic, high,
and appellate courts, with a Supreme Court of Cassation as the highest judicial
institution (OSCE 2011). The law also foresaw the territorial reorganization of the
misdemeanour courts (as in Croatia) radically reducing their number. This system
was intended to redistribute workloads between urban courts and rural ones (Murret
2010). The substantial donor assistance also contributed to modernizing court
equipment with IT-based facilities and case management systems (Mendelski
2010).
19
According to Mendelski (2010), 76 million EUR were provided by the EU between 2001
and 2008.
By contrast, other components of the judicial reform were strongly contested at

national level and negatively perceived by the international community. The main
issue was the provision to re-elect all the judges serving in the country. This idea
had its origin in the 2006 Constitution. In fact, according to article 147, the judges
should be elected by the National Assembly, on the proposal of the High Court
Council, for a probationary 3-year period. Moreover, Article 45 of the 2008 Law of
Judges then specifies that “the High Judicial Council, when nominating a judge,
takes into consideration only his/her professional ability and worthiness. Every
nomination for election shall be reasoned” (Dicosola 2012). The main concern
raised by the new procedure for the appointment of judges was that the rules had to
be applied not only to new judges but also to judges already in office. In fact, a
general election of all judges was planned. Those already in office would pass the
selection procedure and be ‘re-appointed’, while the others would simply be
dismissed (ibid.).
The Serbian judges association immediately called for intervention by the
international community, asking for the opinions of the Council of Europe Consul-
tative Council of European Judges and the Venice Commission, and defining the
entire process a “political purge” of the judiciary (SETimes 2012). The Venice
Commission denounced the ruling, pointing out that there was a risk of violation of
the most basic principles of judicial independence, at least indirectly, because the
rule of irrevocability of judges would be breached (Murret 2010). These criticisms
notwithstanding, on 15 July 200920 the procedure for the appointment of judges
began on the basis of the rules provided in the reforms. A total of 5,030 applications
were submitted, although only 2,483 positions were available; as a consequence, a
huge number of judges were dismissed (Dicosola 2012). According to national
judges and international observers, the procedure was conducted without meeting
the necessary criteria, and standards were not clear. Moreover, non re-appointed
judges were not clearly informed about the reasons for their dismissal, and they
were not allowed to contest the decision. In 2011, a report was issued by local
lawyers for the EU delegation in Serbia following 7 weeks of monitoring
Belgrade’s reappointment of judges. It explicitly denounced the fallacy and the
lack of transparency of the process. “The entire review process was conducted only
to satisfy form and is a schoolbook example of travesty of justice,” (EU Observer
2011).
It is evident that this part of the reform provoked a serious judicial crisis in
Serbia, blocking or delaying the functioning of the entire system. The process was
also severely criticised by the European Commission and by the Council of Europe.
The Commission stated that the procedure highlighted important concerns regard-
ing the composition and independence of the High Judicial Council and the
application of objective criteria and the transparency and reliability of the overall
20
An advertisement for the appointment of judges was published in the Official Gazette of the
Republic of Serbia n. 52/09 of 15 July 2009.
4.4 A Shallow European Judicial Reform 97
process.21 In spite of this negative evaluation, Serbia was granted candidate status
in 2012, and the European Commission did not directly sanction this peculiar
process for the appointment of judges. Although EU officials affirmed that judicial
reform in Serbia is a “particular focus of the Commission” (ibid.), it seemed that
once again the EU preferred to push on other issues (in particular Kosovo) and
opted not to intervene in sensitive national issues in order to gain more ground
against the rising nationalistic forces, which in that period, as described, were
rallying in protest against the EU.
More recent developments relative to re-appointment of judges saw the inter-
vention of the Serbian Constitutional Court, following appeals from numerous
dismissed judges and a ruling against the procedure. The Court adopted the first
ruling in March 2010. It stated that the right to a fair trial had been violated by the
2009 appointment procedure. This opinion was confirmed by two further rulings in
2010 (ibid.). In all cases, the Constitutional Court allowed the appeals and ordered
the HJC to rule again on the applications of the candidates for appointment as
judges. On the basis of these rulings, therefore, amendments to the Law on Judges
were proposed, They stated that decisions on dismissal had to be reviewed by the
HJC not in its full composition, but only by its members ex officio. Nevertheless,
implementation of the review procedure did not solve the problem because most of
the dismissals were confirmed. Consequently, a huge number of judges submitted
new appeals to the Constitutional Court, which finally announced its decision on
11 July 2012 (Dicosola 2012). With the July 2012 ruling, the Constitutional Court
annulled the HJC decisions, on the grounds that not only had, the principle of fair
trial been infringed but also the principle of judicial impartiality due to the
composition of the Council at the time when the decisions under review were
taken (SETimes 2012).
The situation is currently pending, and the EU Commission expressed a negative
evaluation in its 2012 Progress Report, affirming that “the Serbian authorities need
to evaluate how the judicial reform can be further advanced after most
non-reappointed judges and prosecutors are to be reintegrated further to the rulings
of the Constitutional Court.” (European Commission 2012, p. 10). The new gov-
ernment has been almost silent on the issue.
4.4 A Shallow European Judicial Reform
Now that the main steps of EU–Serbia relations and the long and disputed judicial
reform requested by the EU have been outlined, it is time to analyse the process
using the framework and the theoretical concepts at the basis of this study. This
21
Letter of 27 April 2010, sent by J. M. Barroso, President of the European Commission, to
Dragana Boljevic, President of the Judges’ Association of Serbia, Vito Monetti, President of
Magistrats Européens pour la démocratie et les libertés and Goran Ilic, President of the Prosecutor
Association of Serbia, available at http://www.coe.int/t/dghl/cooperation/ccje/cooperation/
LetterCCJE_serbie.pdf
section, in fact, focuses on the interaction between the EU’s action and national
domestic factors, such as the attitude of political actors and the influence exerted on
them by legacies of the past.
4.4.1 2000–2008: Legacies, Political Parties

and the Fake-Reform
Shortly after the defeat of the Milošević regime, the DOS coalition appeared indeed
to be a valid alternative to the authoritarian past. However, a few months after the
fall of the regime, internal divisions and conflicts among the coalition parties
eradicated any hopes of a clear break with the past. Political parties supporting
Milošević were able to reassert themselves on the political scene by finding allies
among the political parties leading the transition. Thus, even after the so-called
‘democratic transition’, many of the political leaders in power during the Milošević
regime were still present in the political arena. As in many other Balkan countries,
the Serbian political elites did not undergo significant changes; nor were there broad
replacements of officials in the upper echelons. Moreover, the public administration
and the judicial system did not register any of these changes. Except for a few
voluntary dismissals, the political forces that led the transition preferred to avoid
the lustratia solution and left the judicial body almost untouched (Dallara 2007).
On looking at the results of the judicial reforms, one notes that, after the 2001
‘reformist honeymoon’, only a few and largely unimportant changes had been
introduced. Moreover, when formal legal provisions were adopted, they were rarely
implemented and enforced. Fear of losing control over the judicial apparatus
induced political parties to reproduce the same organizational structure of the
judiciary as in the past, with the magistrates extremely subordinate to the political
powers. The only difference was that they sought to disguise their intentions by
declaring the need to reform and democratize the judiciary, and by admitting that
political interference with the courts and judicial system still existed but was
difficult to overcome. Two of the experts interviewed, when asked about the state
of the Serbian judiciary, provided numerous examples of so-called ‘legacies of the
past’ in the behaviour of judges.
“One of the most evident legacies of the previous regimes, not only of Miloševic´’s regime
but also of the Communist system, concerns the role of judges in society. Judges are not
used to thinking that they can influence society. They perceive their role as applying the
law, not interpreting it. Judges are not aware of their ability to impact upon society.”
(Interview with the President of the Judges Association of Serbia)
Another expert described the situation as follows:

“The Serbian judiciary has appeared to be divided in recent years: on the one hand there
are still judges of the old school who are deeply convinced of their political role and of the
value of the link between political forces and the magistracy. They still deem it necessary to
consult the political exponents before making a decision. On the other, there are magis-
trates, some of whom received their educations abroad, who believe that reforms are
4.4 A Shallow European Judicial Reform 99
necessary and who are professionally ready to abide by the European standards. Nowa-
days, in the Superior Courts, part of the staff is prepared and valid, but they cannot exercise
any positive influence on the political forces. . . in some cases it seems as if the magistracy
does not want to make itself independent, there is a lack of courage.” (Interview with a
Serbian jurist, Political Advisor at the Stability Pact for Southern Europe).
The narrative of judicial reform and the statement of the experts interviewed
confirmed that, at least until 2008, political parties were the main protagonists of the
judicial policy process. Clearly, political parties, from both within the government
coalition and the opposition, tried to interfere with the main aspects of judicial
reform; diminishing the power of the self-governing body and maintaining some
sort of control over judicial appointments and careers. Although different from
other countries, where political parties had different positions on judicial reform, all
the Serbian parties ‘formally’ recognized the need to reform the judiciary, but none
of them clearly expressed a point of view different from the government’s perspec-
tive on judicial reform. In recent years, political parties have not placed particular
emphasis on the issue. In fact, political debate on it does not currently exist.
Political parties have acted as a compact block to inhibit the reform process as a
result of their fears concerning possible consequences of the reform. As Begovic
and Hiber (2006) suggest, one of the most perceptible anti-reform alliances was the
one between judges who were worried about being removed from office (due either
to incompetence or a lack of integrity) and therefore sought to prevent changes and
political parties trying to preserve effective control over their judicial system.
Why was the EU unable to promote a concrete democratic reform of the Serbian
judiciary? A first reason is apparent on analysing the main aspects of EU action in
the judicial reform field from 2000 to 2008. Such action was essentially based on
the formal requests contained in the European Partnerships (2004, 2006a) and on
the financial and technical assistance projects delivered through organizations and
agencies contracted by the EU. With regard to technical and financial assistance, it
should be pointed out that the EU did not target the main problem of the Serbian
judiciary: that of its lack of independence. Analysis of the EU programmes for
judicial reform assistance shows numerous “appealing matters” such as Moderni-
sation of Belgrade courts, Refurbishment of Court Rooms, Introduction of Alterna-
tive Dispute Resolution, but few efforts made to target the crucial problem of the
influence of the Serbian judiciary over the executive, and of the parties over the
judicial system. Other international donors, such as ABA-Ceeli, USAID and OSCE,
seem to have been more concerned with the judicial independence issue (Dallara
2007). Moreover, on inspecting the priorities of the European Partnerships (2004,
2006a), one finds only broadly-framed conditions without clear requirements,
which give great freedom to the government to adopt and interpret them according
to their interests and standards. To provide just one example, in the 2004 European
Partnership the short-term priorities relative to judicial reform were the following:
“Modernise and increase efficiency and independence of court system, in particular
its commercial courts; ensure independence of war crime prosecutor. Prepare for
the setting-up of administrative and appellate jurisdiction” (European Partnership
with Serbia and Montenegro 2004/520/EC). Here the problem is the determinacy
(Schimmelfennig and Sedelmeier 2005) of EU conditionality. Undoubtedly, there is

a certain ambiguity in terms of norms and requests regarding judicial independence
and capacity and the determinacy of the EU conditionality towards Serbia. As
Noutcheva (2006) has pointed out, if the EU vaguely identifies the area where it
wants to see reforms, domestic politics can either be stuck with finding an solution
acceptable to the major parties or produce an outcome that enjoys domestic
legitimacy. The vagueness of the EU’s conditions on judicial reform in the Serbian
case was used by the government to justify its proposals and obstruct the reforms.
Although the Progress Reports were always negative in their assessments on
judicial independence and capacity, the determinacy of the conditionality was not
strong enough to provide substantial incentives for the government to be efficient in
this reform sector. No serious actions were taken to sanction the conduct of the
government in reforming the judiciary; the EU conditionality was stronger and
more credible in other reform areas, such as the State Union with Montenegro or
cooperation with ICYT. This increased the perception of the EU’s action as
ambiguous and characterized by mixed signals. Hence, overall, the credibility of
the conditionality remained low, especially until 2007. Only a few and weak
domestic change agents in judicial reform could be found during this period.
Apart from Djindjić until 2003, the only actor that could have been a change
agent was the Judges Association. Growing in terms of both associated judges
and organized initiatives, the association was the only collective actor which
expressed a precise point of view on judicial reform and tried to be a counterpart
to the government. But, especially, until 2008, JAS was supported (both financially
and politically) only by USAID and OSCE, while the EU did not formalize any
contacts or relations with the association and thus did not contribute to empowering
this potential agent of change.22
In contrast, the political parties can be seen as the ‘veto players’ that inhibited
concrete changes in the judiciary. Political parties (both majority and opposition)
acted as a cohesive block to inhibit the reform process for fear of its possible
consequences. The judiciary is one of the key sectors in which so-called ‘state
capture’ takes place: that is, the presence of “groups or social strata [. . .] that
exercise decisive influence over state institutions and policies for their own interests
against the public good” (Pešić 2006, p. 1). The key mechanism of this influence is
the power of judges appointment. On many occasions, executive members managed
to appoint “their party faithful?” to the top judiciary positions (Helsinki Committee
for Human Rights 2007). Although some laws were enacted during this period, such
as the five 2001 laws on the judiciary or the 2006 Reform Strategy, their content
was rapidly modified through legislative amendments aimed at, or strategically
adapted to, the parties’ interests. The result of this situation was what Noutcheva
(2006) terms ‘fake compliance’: that is, a simulation of compliance to avoid the
higher costs of a manifest confrontation. It consists in the adoption of rules and
22
This information was confirmed by the interviews held in Belgrade with the JAS members.
4.5 Conclusions 101
norms that seemingly comply with the EU’s requirements but in truth are a sort of
camouflage aimed at maintaining the status quo.
4.4.2 2008–2012: Massive Donors’ Assistance, Tadic´

as Change Agent and Some Results
As said, a new starting point for Serbian judicial reform came in 2008, President
Tadić, who can be considered a change agent by virtue of his pro-EU national
campaign, also performed this role in the judicial reform field. He publicly
underlined the need for such reform and its importance for the Serbian society
and economy, independently of the EU’s requirements. This certainly accelerated
preparation of the 2008 laws package by the government. Simultaneously, the EU
conditionality pressed harder on the judicial reform issue owing to the negative
performances of Romania and Bulgaria in this regard. 2007–2010 was also the
period in which donor assistance was massive, and many of the projects
implemented were achieving their first positive results: for example, in the mod-
ernization of court facilities (Mendelski 2010). Moreover, the attention of political
parties was concentrated on other issues, and the parties most opposed to reform of
the judiciary (the Radicals or the DSS) had been marginalized by the EU’s strategy
of the ‘differential empowerment’ of national actors.
The combination of these various circumstances contributed to the achievement
of some partial results: for instance, the territorial reorganization of the courts, the
creation of some specialized jurisdictions, the introduction of ethical and disciplin-
ary codes, and the implementation of specific programmes to reduce backlogs in the
courts (Murret 2010).
Table 4.1 outlines the main features of the interaction between EU conditionality
and domestic factors, and the subsequent results in terms of rule adoption and
implementation in the three time periods described in the previous pages.
4.5 Conclusions
To conclude the analysis of the Serbian case, to be noted is that, as in other Balkans
countries, judicial reform proved to be one of the most critical and difficult
undertakings. Legacies of the past were manifest in the resilience of the judicial
institution, in the behaviour of judges, and in the attitude of political actors towards
the issue. The Serbian political parties perceived the judiciary as a potential
political weapon. They consequently sought to generate institutional solutions
that would give them power over its functioning. In this context, a truly free
judiciary was almost impossible because its genuine independence would have
profoundly undermined the basis of elite power.
Table 4.1 EU conditionality and mediating factors in Serbian judicial reform

2000– • Focused only on • Djindjić as a change • Reformist honeymoon
2003 ICTY cooperation agent but for too
and relations with short a time
Montenegro • No veto players • Post-transition euphoria
• Some basic democratic
progress
2003– • Low credibility • No change agents • Adoption of EU-driven
2008 • Low determinacy • Political parties as rules slow and difficult
veto players • Fake compliance
• No change in the • No rules implementation
cost/benefit balance
2008– • Increasing credibility • Tadić as a change agent • Significant adoption of
2012 of EU membership also in regard to the EU-driven rules
judiciary
• Increasing pressure • Political parties as veto • Some progress achieved
for judicial reform players marginalized also in terms of rule
by the EU implementation
Source: author’s elaboration
The EU was generally unsuccessful in influencing the reform process in the

national domain. There are three reasons for this failure: first, the presence, at least
until 2008, of a cohesive anti-EU block within the Serbian party system; second, the
EU’s ambiguity towards Serbia in relation to membership and its consequences on
statehood issues; third, non-intervention in the more problematic aspects of the
judicial system’s reform. In regard to the first issue, in Serbia, unlike the majority of
Eastern European and Balkan countries, there was outright political conflict over
accession to the EU. Serbia was the only country with active anti-EU political
parties (Dallara 2009). Moreover, until 2007, the EU’s attitude towards Serbia was
undoubtedly ambiguous. The prospect of EU membership was too remote, and the
attitude of Brussels officials towards Serbia was extremely severe. With the start of
the SAA negotiation, the EU’s promises gained more credibility, the result being an
improvement in compliance with the EU’s requirements. However, overall, the
EU’s attitude towards Serbia was unclear: at times it tolerated Serbian
non-compliance; at other times severely punished it. This situation had a negative
impact on the determination of political actors and on public perception of the
significance of the EU integration process. Such EU policies weakened change
agents and pro-EU civil society, while in the meantime increasing the power of veto
players. Moreover, also the low determinacy of the EU requirements inhibited rule
adoption, specifically in the case of judicial reform. Hence the membership per-
spective was unclear and the EU’s coercive power was less forceful than in the case
of the CEEC countries. As Piana puts it (2009), the success of a reform is more
subject to path dependence and to the influence of the institutional legacy where the
political conditionality exercised by the EU is less binding and pressing.
4.5 Conclusions 103
Moreover, as Noutcheva (2006) underlines, in order fully to understand the

leverage of EU conditionality towards the Western Balkans, it is necessary to
consider that in those countries, unlike the CEECs, problems of sovereignty and
statehood were the most powerful filters for domestic compliance. Statehood issues
influence both the specific conditions that the EU sets for membership and the
domestic political process. For the latter, the presence of external actors undermines
the process of local political bargaining and increases political fragmentation.
Indeed, national political actors are powerful gatekeepers through which the stan-
dards and criteria imposed by the EU are interpreted and translated into public
policies?. Therefore, the outcomes of reforms depend crucially on the strategies of
these actors and on their capacity, or their will, to distance themselves from the
previous regime. As described above, this was extremely evident in the case of
Serbia. To be more precise, rule adoption was ‘selective’, and in some cases took
the form of fake compliance (Noutcheva 2006). Rule adoption worked only in
relation to those priorities that did not imply ‘intrusion’ into the country’s sover-
eignty or were considered ‘fitting’ or appropriate by the governing elite. As
Noutcheva (2006) argues, the existence of sovereignty-linked conditions makes
the domestic community very divided, and in some cases they engender strong
opposition to EU demands. Serbia is considered to be one of the Balkans countries
with an adequate state capacity to adopt EU-driven reforms (Börzel 2013) and its
progress towards the EU was more inhibited by the perception of violations of its
national sovereignty on issues such as cooperation with ICTY and relations with
Montenegro or Kosovo. Here problems of statehood have influenced its willingness
to comply with the EU more than its capacity to do so (Stojanović 2013).
In regard to the third reason for the EU’s failure to influence Serbian judicial
reform, the chapter has underlined that the EU did not intervene in crucial phases of
the reform of the judiciary—for instance, the re-election of judges—and often
limited its assistance to ‘secondary’ issues related more to the modernization of
courts than to judicial independence. This situation also had a negative impact on
the potential empowerment of the judges as a collective entity. The striking feature
of Serbia, compared with other countries in the area like Romania, is the weakness
of the judges as a professional group (Guarnieri 2003). Only recently have they
tried to grasp the attention of the EU and the Council of Europe by denouncing their
lack of independence and the need to intervene. It is only since 2009 that the Serbia
Judges Association has been consistently present within the European-level net-
works of judges and prosecutors (Dallara 2012) that have contributed to the strong
empowerment of judges in other countries such as Croatia and Slovenia. On the
other hand, the EU was until recently totally unable to empower this potential
change agent. No differential empowerment was applied to social actors that could
have been the key factors in determining true compliance in critical areas such as
the rule of law.
Thirteen years after the collapse of Milošević’s regime, Serbia has developed
considerably in democratic terms, although the country is still in search of long-
lasting political stability to advance towards the EU. Until 2008, the lack of an
adequate relationship between the EU and the Serbian governments prevented the
creation of a stable political dialogue between Brussels and Belgrade, and it was the
main obstacle to the EU integration process. With the long Tadić presidency, this
dialogue was properly established, and the link with the EU seemed strong enough
to resist the return to power of the nationalist forces. In fact, the Brussels-Belgrade
dialogue continues on the Kosovo issue notwithstanding the ‘peculiar’ rhetoric of
the Serbian leaders. Recent developments suggest that Serbia, maintaining its
characteristic of being a special case (Börzel 2013) also in this new phase, may
finally find its Balkan way towards the EU.
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Chapter 5
EU-Driven Judicial Reforms: Any Lessons
Learned?
Twenty years since the first steps of the EU Enlargement Strategy, many scholars
concur in emphasising that rule of law, and then judicial reforms, progressively
became the core issues of the entire process. The 2012 EU Enlargement Strategy, in
fact, established a more structured and targeted approach to rule-of-law issues, and
in particular to the topic of the judiciary and fundamental rights. One of the reasons
for this gradual shift is the awareness that efficient and impartial judicial systems
are vital for effective judicial cooperation among States and, consequently, for
guaranteeing security, freedoms, and a well-functioning European economy (Piana
2012; Nicolaidis and Kleinfeld 2012; Coman 2013; Nechev 2013).
The adoption of the Copenhagen criteria, in 1993,1 may be seen as a turning-
point in the activities of the European Commission (EC) in promoting judicial
reforms in third countries. The Copenhagen political criteria for membership
asserted that respect for the rule of law was one of the preconditions for opening
accession negotiations.2
The importance of judicial reforms for the entire enlargement process was then
confirmed by the experience of some new EU members (i.e. Romania and
Bulgaria). In those countries, judicial reforms represented a crucial policy field
threatened by the influence of domestic political actors and, consequently,
extremely resistant to change (Dallara 2013). These reforms, in fact, can directly
challenge the domestic power structure (Coman 2013).
Therefore, study of judicial reforms in the post-communist countries of South-
East Europe reflects the entire complexity of institutional reforms and capacity-
building in post-authoritarian contexts, and it can offer interesting insights on
broader topics such as the role of the elites and changes in the power structure.
1
Until the beginning of the 1990s, rule of law was mainly promoted within the European Initiative
for Democratization and Human Rights (EDHR) framework. See Piana (2010).
2
The other pre-conditions are the existence of democratic institutions, commitment? to human
rights, and the ability to take on the economic responsibilities of membership in the Single Market.

108 5 EU-Driven Judicial Reforms: Any Lessons Learned?
In this context, the book has investigated what explanatory factors seem best to
account for the trajectories and results of judicial reforms in four countries of
South-Eastern Europe: Slovenia, Romania, Croatia and Serbia. The early
approaches used to analyse judicial reforms in the post-communist countries of
Central and Eastern Europe failed to predict quite similar and rapid results also for
the other countries of the post-communist area, especially in the Balkans
(Hammerslev 2007; Coman 2013). Differently, this study claims that in each
country the influence of the EU’s policies promoting judicial reforms was mediated
by national factors, producing divergent trajectories and outcomes. In some cases,
domestic actors challenged judicial reforms and hampered the EU’s influence by
strongly opposing the empowerment of judicial institutions and actors; in other
cases, political and judicial actors were more willing to follow the EU-driven
reform path, and used the EU’s influence as a strategic tool to deploy in the
domestic arena.
Case study analysis offers further evidence on how the EU’s influence should be
conceived as only a “lever that could be used” and not as a miraculous device
producing immediate and common effects. The EU may be successful in opening
up a critical juncture for reform (Coman 2013), but then the game is played among
the domestic actors. National political actors are powerful gatekeepers which
interpret the standards and criteria imposed by the EU and translate them into
public politics (Grabbe 2002). Therefore, the outcome of the reforms depends
closely on the will and the skills of political and judicial elites to move away
from the legacy of the previous regime.
The main research questions addressed in the book have been these: how can the
different patterns of interaction between the EU and domestic actors (both judicial
and political) be explained? What explanatory factors best account for the reform
trajectories?
The analysis of the four cases has confirmed that, in order to understand the
different trajectories and outcomes of the EU-driven reforms, several factors and
explanatory assumption need to be examined. Moreover, these studies confirm that
one-dimensional approaches, both those considering only the EU’s action and those
considering only the domestic level, are not sufficient to understand the complex
interaction that occurs between the two levels in sensitive policy fields such as the
judiciary.
In what follows, the main findings of each case study analysis will be summa-
rized by looking at the EU conditionality policy towards each country (in particular,
at the two properties of credibility and determinacy). Then, each of the explanatory
assumptions described in Chap. 1 (and recalled within the case studies) will be
reviewed comparatively.
5.1 The Credibility and Determinacy of the EU Conditionality 109
5.1 The Credibility and Determinacy of the EU

Conditionality
In regard to the EU’s action, the book has evidenced that, as already advanced by
the first generation of Europeanization studies, the credibility of EU membership
and the determinacy of the EU’s requirements are important factors to be consid-
ered in explaining the attitude of domestic actors towards the EU-driven reforms.
The pre-accession processes of the two “poster children” (Börzel 2013) of EU
enlargement in South-East Europe—Slovenia and Croatia—seem to suggest that
key factors in their “success” are the EU’s ability to target its strategy on these two
frontrunner cases. In Slovenia, the credibility of the EU conditionality was good
and reliable from the early stages of the pre-accession process onwards. Moreover,
Slovenia elites started to align their policies and institutions with the EU standards
even before candidate status was obtained.
Instead, the EU’s strategy towards Croatia went through some more critical
phases related to the difficult collaboration with the ICTY. These difficulties
account for the longer and delayed pre-accession path, but many scholars agree in
considering Croatia a demonstration of domestic political empowerment through-
out the EU membership prospective (Vachudova 2005; Noutcheva 2012). The
strategy towards Croatia was further targeted and standardized, particularly in
relation to the rule-of-law reforms (after the difficult experiences of Romania and
Bulgaria in 2007). These difficulties and poor results induced the EU to improve
conditionality on the rule-of-law issues, and especially on judicial reforms, thereby
strengthening the overall credibility and determinacy of its strategy towards the
new candidates.
Serbia and Romania are exemplary cases with which to analyse how the EU
conditionality was more or less effective in the different phases of the pre-accession
process, and they highlight the importance of EU membership credibility. The two
countries are also good examples with which to highlight the limits and fallacy of
the EU enlargement rule-of-law promotion.
In Romania, the conditionality policy, which was implemented especially after
2004, was effective at least for the formal adoption of legislation. The most
important factor influencing the formulation of measures in the two policy areas
under consideration was the inclusion of these issues in the safeguard clause
(determinacy of the conditionality). The prospect of membership was credible,
and so was the use of conditionality, particularly with the institution of the safe-
guard clause (Mungiu-Pippidi 2005; Pridham 2007; Noutcheva and Bechev 2008).
Only when the prospect of membership had become credible did the political forces
begin to launch the first processes for reform of national institutions. Thereafter, the
short-term objectives of the political forces in power coincided with those dictated
through the conditionality exerted by the EU. Furthermore, only when the hypoth-
esis of activating the safeguard clause began to circulate, in 2004, did political
forces start to adopt some measures in judicial reforms.
The analysis of the post-accession phase has instead demonstrated that the
political conditionality exerted by the EU drastically lost its efficacy once mem-
bership had been acquired. The Romanian case also evidences that the EU was not
well prepared to sanction national actors that used the EU conditionality instru-
mentally to control internal conflict without guaranteeing adoption of the required
reforms. As described in Chap. 3, in the post-accession phase, national politicians
repeatedly emphasised their intention to reassert their authority in the national
decision-making process without submitting to the iron laws of conditionality any
longer.
Political conditionality proved entirely ineffective in Romania during the post-
accession phase. The checklist technique used by the EU to monitor the country’s
progress was wholly ineffectual. The threat of the safeguard clause was evidently
not enough to impact concretely on the attitudes of the political class. Even the post-
accession Cooperation and Verification Mechanism was too weak to influence the
country in pursuing the requisite steps in the three ‘key-areas’ (judicial reforms,
anti-corruption and organized crime) being monitored.
The European Commission’s rather benevolent attitude towards Romania’s
institutional maquillage helped reinforce the position of the Romanian political
class and weakened the role of the EU as an actor of democratization. Only after
2009 did the EU begin to issue decidedly negative evaluation reports on Romania; it
was clearly too late.
As for the last case study, until 2007, the EU’s attitude towards Serbia was
undoubtedly ambiguous. The prospect of EU membership was too remote, and the
attitude of Brussels officials towards Serbia was extremely severe. Overall, the
EU’s attitude towards Serbia was unclear: at times it tolerated Serbian
non-compliance; at other times it severely punished it. This situation had a negative
impact on the determination of political actors and on public perception of the
significance of the EU integration process. Such EU policies weakened change
agents and pro-EU civil society, while at the same time increasing the power of veto
players. Moreover, also the low determinacy of the EU requirements inhibited rule
adoption, specifically in the case of judicial reform. With the start of the SAA
negotiation, the EU’s promises gained more credibility, the result being an
improvement in compliance with the EU’s requirements. Until 2007, EU condi-
tionality continued to be perceived mainly as a form of forced cooperation with the
ICTY (Jovanovic 2006). This negative perception of the EU was particularly
stressed by those parties that were publicly anti-EU and acted as veto players to
inhibit the adoption and implementation of the EU-driven reforms.
5.2 National Mediating Factors and Constrains
In Chap. 1, it was shown that the EU policies promoting judicial reforms were
mediated by national factors to produce divergent trajectories and outcomes. The
analysis conducted in this book has focused in particular on national mediating
5.2 National Mediating Factors and Constrains 111
factors of greatest importance according to the literature on democratization and

Europeanization. The four cases confirm the significance of these mediating factors,
although some of them were not equally relevant in all the four countries. The
change agent versus veto players dichotomy, for example, is particularly relevant to
the case of Romania, and, in some respects, of Serbia, but not to those of Croatia
and Slovenia.
5.2.1 Change Agents Versus Veto Players
The interplay between change agents (national actors in favour of EU accession),

and veto players (national actors opposed to accession or supporting it only
opportunistically), was crucial in explaining the reform outcomes in Romania and
Serbia. By contrast, this dichotomy was not relevant in Croatia and Slovenia.
Although the Romania and Serbia case studies have many differences, they evi-
dence that the willingness of national political actors to comply with the EU’s
requirements was crucial for achieving concrete results.
As said, Romania is considered a paradigmatic case (Pridham 2007; Dallara
2010; Mendelski 2013) to explain how the EU’s influence on judicial reforms may
be strongly reinforced by the presence of change agents or, on the contrary,
annulled by the action of veto players. The Minister of Justice Macovei was, during
the period between 2005 and 2007, the prototype of a change agent, confirming the
hypothesis that the presence of a change agent is the direct result of a process of
socialisation of political and/or professional figures within either epistemic com-
munities or international networks (Finnemore and Sikkink 1998; Börzel and Risse
2000). Minister Macovei, who represented the connecting link with the interna-
tional level, was tolerated only as long as she was deemed useful for the purpose of
accession, and she was ousted as soon as the grip of international control had been
eased. After Macovei, no other change agent committed to EU-driven reforms
could be found.
But the factor with the greatest impact on the pre-accession judicial reform path
in Romania was the presence of veto players (members of the CSM, of the Court of
Cassation, and of the Constitutional Court) that sought to maintain the status quo in
relation to the functioning of the judiciary by maintaining their alliance with the old
guard of the post-communist parties.
In Serbia, few and weak domestic change agents in judicial reform could be
found during the last 10 years. Apart from the pro-democratic Prime Minister
Djindjić, until 2003 the only subject that could have acted as a change agent was
the Judges Association, but the EU did not formalize any contacts or relations with
the association, and thus did not contribute to empowering this potential agent of
change.3 After 2008, President Tadić could be considered a change agent by virtue
3
This information was confirmed by the interviews held in Belgrade with the JAS members.
of his pro-EU national campaign, which also had a positive impact on the judicial
reform process. He publicly underlined the need for such reform and its importance
for Serbian society and economy, independently of the EU’s requirements. This
certainly accelerated preparation by the government of the 2008 package of laws.
By contrast, the Serbian political parties can be viewed as the ‘veto players’ that
inhibited concrete changes in the judiciary. Political parties (both majority and
opposition) acted as a cohesive block to inhibit the reform process for fear of its
possible consequences. The judiciary is one of the key sectors in which so-called
‘state capture’ occurs (Pešić 2006). The key mechanism of this influence is power
over the appointment of judges, which was still in the hands of the Serbian
parliament. On many occasions, executive members managed to appoint “their
party faithful” to the top judiciary positions (Helsinki Committee for Human Rights
2007). Although some laws were enacted during this period, such as the five 2001
laws on the judiciary or the 2006 Reform Strategy, their content was rapidly
modified through legislative amendments aimed at, or strategically adapted to,
the parties’ interests.
5.2.2 Conflict on EU Accession and Requirements
As mentioned in the Introduction, judicial reforms are issues of high politics,

crucial topics for political actors, and costly in terms of the political bargain.
Only if political elites are convergent on EU accession (not only formally) and
the EU rule-of-law requirements can the EU incentives be used properly to intro-
duce and implement changes.
The main feature shared by judicial reforms in Slovenia and Croatia is that in
both countries, although they became EU members with a very different timings,
the EU-driven reforms in the judicial sector—especially the structural reforms—
were adopted and implemented without particular conflict between political and
judicial actors. The path of judicial reform in Slovenia and Croatia were, in
comparison with the other two countries, Romania and Serbia, particularly rapid
and efficient in solving problems relative to creating the institutional framework
and the guarantees of judicial independence.
From the end of the 1990s, the process of judicial reform in Slovenia was
entirely tailored to the EU recommendations in order to close the negotiation
efficiently in view of the 2004 accession (Dallara 2013). Political actors were linear
in pursuing reform and modernization of the judicial system, without any serious
disputes on the guarantees of independence or other measures related to the
institutional power of the judiciary (Dallara and Vrabec 2010).
In Croatia, the elite’s attitude towards the EU after Tudjman’s death in 1999, and
especially after 2003, was quite compact on the issue of EU accession. Even the
moderately nationalist party, the HDZ,4 which was in power for most of the 2000s,
adopted a pro-EU rhetoric and an EU-reform agenda that facilitated at least the
process of law adoption (Noutcheva and Aydin-Düzgit 2012). Also on the goals
relative to judicial reforms, much of the progress was achieved in the name of EU
accession.
In Romania, the political elites were mostly in agreement on EU accession and
the issue was rarely disputed. Notwithstanding a formal commitment to entering the
EU, the pre-accession process was characterized by fake reforms and partial
compliance with the EU’s requirements. In the pre-accession phase, there was no
conflict on EU membership per se because all the national actors, both political and
judicial, concurred on the objective of accession. Instead, conflict arose among
national actors on the specific content of the judicial reform and, in particular, on
those aspects that would have modified the status quo. This case demonstrates that
adoption of the EU-driven reforms was not, in fact, the result of a natural political
action animated by a conviction of legitimacy; rather, it was a strategic response to
the EU’s demands.
Unlike the majority of Eastern European and Balkan countries, Serbia was the
country with the most powerful presence, at least until 2008, of a cohesive anti-EU
block within its party system. Moreover, there was outright political conflict over
accession to the EU (Dallara 2009). Among the Serbian parties, the Radicals were
the principal actors opposing EU integration. They envisaged close relations with
the former communist countries, namely Russia, as an alternative to integration into
the Western community (International Crisis Group 2006; The Economist 2007).
The strategic vision of integration into the EU was perceived by substantial parts of
the Serbian political elites as weak and insufficiently attractive because of high
political fragmentation, complemented by practical difficulties relative to the
reforms required by the EU. After the granting of candidate status and looking at
the Croatia pre-accession positive end, even the Serbian nationalist forces changed
their attitude towards the EU. The new radical president, who was the icon of
nationalism for many years, is today finding a “Serbian” way to Europe, accepting
also the imposed dialogue with Pristine.
5.2.3 Legacies of the Past and Structural Constraints
The four cases studies also confirm the importance of stateness properties con-
ceived as structural conditions or constraints that may impact on the state’s capacity
to adopt and execute the EU rules.
The descriptions of the Slovenian and Croatian cases showed that, although
some legacies of the past were still present in the functioning of the judiciary after
4
The Croatian Democratic Union, the main centre-right political party, which manifested some
nationalist tendencies especially at the end of the 1990s.
independence, political elites were able gradually to overcome obstacles to the

re-organization of the judiciary by using the EU as a powerful lever with which to
justify and introduce important structural changes. The slightly different historical
background of these two countries (namely the greater influence of the Habsburg
emperor before the Communist period) may be one of the factors that made
structural judicial reforms less difficult than in the other countries analysed.
The good level of state and administrative capacity in Slovenia enabled rapid
steps to be taken in the democratization and modernization of the state institutions.
This advanced status may be considered the result of the softer Socialist experience
during the 1970s and 1980s. Thus, the leverage of EU accession was only powerful
in inducing the national governments instituted after the authoritarian regimes to
reduce political control over the judiciary.
The leverage of the legacies of the communist past was less influential in
Slovenia than in the other countries of the region. A good level of socio-political
freedom, in fact, had already been granted during the Socialist Republic
(Boduszynski 2010). Although the party controlled the more sensitive political
and social cases, as it did in all the other countries of the area, the judiciary was
able to maintain a good level of autonomy tolerated by the party nomenclature
(Dallara 2007). Formal provisions relative to the independence of the judiciary
were already present in both the Federal and the National Constitutions. Moreover,
as described, Slovenia is the only country belonging to the Former Yugoslavia in
which a judges association had already been established during the Socialist
Republic.
In Croatia the heritage of the Yugoslav socialist system was mainly related to the
economic structure of the country, characterized by corruption and clientelism
(Boduszynski 2013). Instead, the socialist legacies were less influential in term of
stateness and in particular in terms of institutional performance and administrative
functioning of the public institutions (Noutcheva 2012; Börzel 2013). Although
some stateness problems characterized the pre-accession process of Croatia (the
Serb minority, the territorial sea disputes with Slovenia, and the myth of the
Homeland War) their leverage gradually decreased in recent years. In regard to
the judicial system, some problems derived from the leverage of the ethno-
authoritarian regime of Tudjman during the 1990s. Political interference in the
judiciary thus continued to be the main problem throughout the 1990s. Thus, in
Croatia, significant structural reforms were adopted only after 2000, and especially
after 2005.
The inability of judges to be an independent body acting as counter-balancing
power within judicial reform policy is also an expression of the structural con-
straints linked to the differing burdens of the legacies of the past (Grabbe 2006).
Only if judicial actors are sufficiently organized and professionally autonomous to
be a counter-balancing force in shaping reform outcomes can the EU lever be used
to push for reforms.
In Romania, judges were stronger and collectively more organized than in Serbia
but, especially in the highest courts, they tried to maintain the status quo in relation
to the independence and functioning of the judiciary, preserving the alliance with
the old guard of the post-communist parties. The existence of an untouchable

“privileged class” of high politicians, judges and professionals, clearly the expres-
sion of the Ceausescu sultanate rules, dominated the 2000s in Romania despite the
country’s modernization. The legacies of the Ceausescu regime in the judiciary
were powerful and deep because his control over judicial power was totalitarian, as
it was in the other sectors of the state (Demsorean et al. 2009).
The behaviour of the upper court judges was a consequence of a never completed
rupture in the judicial and administrative systems (Morlino 2003), which continued
to exhibit many of the characteristic features that they had possessed during the
Ceauşescu regime, and especially their hierarchical conception of the judge’s role.
The Constitutional Court, the Court of Cassation, and the CSM are the clearest
instances of continuity with the aforementioned regime (Dallara 2009). The mag-
istrates co-opted to these institutions were the selfsame figures that had been in
office during the Ceauşescu regime and in the following decade, and many of them
had been directly appointed by the old political elite (Demsorean et al. 2009). The
fact that many judicial reform proposals were blocked on grounds of unconstitu-
tionality reflects the problem of state-capture by clientelistic elite networks that still
today are a legacy of the country’s past history. This legacy consists of those
informal structures (for instance, the permanent link between the highest courts
and politicians) that concretely limit state-capacity and stateness.
In Serbia, legacies of the past were manifest in the resilience of the judicial
institution, in the behaviour of judges, and in the attitude of political actors towards
the issue. The Serbian political parties continued to perceive the judiciary as a
potential political weapon. They consequently sought to generate institutional
solutions that would give them power over its functioning. In this context, a truly
free judiciary is perceived as a mean of undermining the basis of elite power.
Meanwhile, judicial actors were so weak and embedded in the politicized concep-
tion of judicial system that political parties were the only players in judicial reform.
In Serbia, problems of sovereignty and statehood were the most powerful filters
for domestic compliance. Statehood issues influenced both the specific conditions
that the EU set for membership and the domestic political process. This was clear in
the case of Serbia. To be more precise, rule adoption was ‘selective’, and in some
cases took the form of fake compliance (Noutcheva 2006). Rule adoption worked
only in relation to those priorities that did not imply ‘intrusion’ into the country’s
sovereignty or were considered ‘fitting’ or appropriate by the governing elite. As
Noutcheva (2006) argues, the existence of sovereignty-linked conditions made the
domestic community very divided, and in some cases they engendered strong
opposition to the EU’s demands. Serbia is considered to be one of the Balkan
countries with an adequate state capacity to adopt EU-driven reforms (Börzel 2013)
and its progress towards the EU was more inhibited by the perception of violations
of its national sovereignty on issues such as cooperation with ICTY and relations
with Montenegro or Kosovo. Here problems of statehood influenced its willingness
to comply with the EU more than its capacity to do so (Stojanović 2013).
Table 5.1 Comparative overview of the explanatory factors in the four case studies
Slovenia Croatia Romania Serbia
EU level
Determinacy and credi- Yes Yes Only after 2004 Only after 2009
bility of the EU
conditionality
Empowerment of Not relevant Yes, after Yes, only with No
pro-reform domestic 2003 Macovei Minister
actors
National level
Presence/absence of Not relevant Not relevant Macovei Minister President Tadic,
change agents and (2004–2005) only after
their powers 2008
Presence/absence of Not relevant Not relevant Presence of powerful Political parties
veto players and institutional veto as veto
related power players players
Political convergence/ Convergence Convergence Conflict, in particular Conflict on the
conflict on the EU on judicial reforms overall EU
requirements requirements integration
Limited-stateness and Not relevant Not relevant Huge legacies of the Huge legacies
influence of the leg- Ceausescu regime of the
acies of the past Milosevic
regime
5.3 Lessons Drawn and Future Challenges: Beyond

Conditionality?
The summary of the findings of each case study, presented with reference to the
main explanatory assumptions (Table 5.1), makes it possible to propose some
further considerations on the EU’s enlargement strategy, in particular with regard
to the judicial field.
The goal of promoting judicial reforms within the enlargement-involved coun-
tries proved to be one of the most difficult tasks for the EU as an external actor of
democratization. Although the conditionality instrument5 acted quite powerfully on
the first group of candidates, as confirmed by the Slovenian case, it was not enough
in the other countries involved in other rounds of the enlargement process. More-
over, conditionality was very differently perceived by each country’s national
elites.
A turning point in the better targeting of the conditionality policy came in the
pre-negotiation phase of Croatia. The much debated accession of the two “success-
ful laggards” Romania and Bulgaria, in 2007, represented the critical juncture that
opened the process of policy-change (Capano and Howlett 2009). The fact that
these two countries entered the EU without having completed all the reforms
5
For an interesting analysis of the EU conditionality and its limits see the special issue of West
European Politics, 35:1, edited by Börzel and Risse (2012).
5.3 Lessons Drawn and Future Challenges: Beyond Conditionality? 117
required highlighted the need to find mechanisms to stimulate post-accession as

well. Thus, as Börzel and Risse affirm (2012), attention turned to EU infringement
proceedings and on setting up the Control and Verification Mechanism (CVM).
Even if some scholars (Spendzharova and Vachudova 2012) find that the CVM
proved quite a good tool because it made it possible to benchmark in detail the
functioning of each institution, the findings presented in this book on the Romanian
case seem to evidence that it was not, at least immediately, efficient in tackling
attempts to reverse rule of law that occurred, for example, in 2012.
Moreover, the candidate countries after Romania and Bulgaria were subject to a
more strictly targeted negotiation conditionality. As Nechev (2013) states, lessons
learned from previous waves of enlargement prompted the introduction of a number
of innovations and principles governing the new negotiations. The Aquis
Communitaire was organized into 35 subject-related chapters. In regard to the
rule of law, the former justice and home affairs chapter was divided into two
more specific chapters: judiciary and fundamental rights (Chap. 23), and justice,
freedom and security (Chap. 24). Thus, judicial reform topics were no longer
assessed under the generic umbrella of the “democracy and rule of law criteria”
but, instead, specifically evaluated in a dedicated chapter subject to the negotiation
system. Moreover, another mechanism introduced to improve the negotiation
process was the benchmarking system. Introduced in order to assist the accession
country in meeting the criteria, the benchmarking methodology represented a
novelty in assessing the country’s preparedness before opening and closing a
negotiating chapter (ibid.). These were the main novelties relative to the technical
aspects of the EU strategy of rule of law promotion.
In terms of contents, although the rule-of-law requirements continued to be
mainly built with a description-based approach6 rather than with an analytically
based definition (Nicolaidis and Kleinfeld 2012), the EU’s attention increasingly
focused on more concrete aspects of the functioning of judicial systems, such as
impartiality, the quality of the service, and efficiency in terms of timing (Piana
2010). The increasing collaboration with the CoE, especially in relation to the new
candidate countries such as Croatia and Serbia, helped the EC in more closely
targeting requirements and assistance concerning judicial reforms.
More in general, Börzel and Risse (2012) emphasise that the EU refrained from
systematically invoking conditionality. Instead, it placed more stress on capacity-
building assistance and political dialogue in order to induce domestic reforms.
Confirmation for this shift is provided by the current EU attitude towards Serbia.
Recently, perhaps learning from the failure to build such a dialogue with Romania
and Bulgaria (Coman 2013), the EU has mainly acted on Serbian radical elites in
order to reinforce, first of all, a reliable political dialogue to guide the pre-accession
process. The results relative to dialogue with Kosovo may be seen as a positive
achievement by the EU.
6
Kleinfeld (2005) defined the early stages of the EU rule-of-law promotion requirements as the
“laundry list” of the standards to fulfill.
The analysis of Croatia and Serbia also confirms, as argued by Börzel (2013),
that when the EU policy became more credible and substantial, the country could
comply even with costly conditions, such as the Kosovo condition for Serbia and
ICTY collaboration for Croatia.
This book has also evidenced that judicial reforms may be a very interesting and
fruitful means to extend the role and power of the post-communist elites in their
interaction with the EU machine. In this regard, comparison between judicial
reforms and other sectors could yield interesting results.
The main variance among the four cases analysed seems to concern the existence
of conflicting positions on EU accession and its related requirements.
The fact that EU accession was never disputed in Slovenia and Croatia (except
for the ICTY cooperation in Croatia) and that there were no openly anti-EU
political forces is relevant to explaining the relatively smooth process of judicial
reform. Moreover, political and judicial elites were not in conflict on the EU
requirements relative to judicial reforms. Both countries quite rapidly (more Slo-
venia than Croatia) solved problems concerning judicial independence and impar-
tiality; even if Croatia, in addition, experienced also the ethno-authoritarian decade
of Tudjman.
In Romania, by contrast, fierce conflict arose in relation to specific aspects of
judicial policies, in particular the limitations set on the privileges of high court
judges and on the composition of the CSM. In Serbia, the opposition of the entire
spectrum of political parties to true judicial reform was instead due to severe
conflict on the idea of an independent and impartial judicial system.
The variance in conflict on EU accession or on EU-driven judicial policies was
mainly due to the influence of the legacies of the past and the relative structural
constraints.
It has already been mentioned in the previous sections that the greater influence
of the Habsburg Empire on Slovenia and Croatia may account for their better state
and administrative capacity. Study of judicial reforms in South-Eastern Europe
confirms that state capacity—conceived as the ability to make, enforce, and imple-
ment collectively binding rules—is a key factor in explaining different trajectories
and results.
Croatia’s good state capacity enabled it to comply with the majority of the EU’s
requirements, and the moments of stagnation were mainly due to unwillingness to
cooperate with the ICTY (Börzel 2013). Also Serbia is regarded as a country with a
quite good state capacity, although it is not possible to affirm that this applies to the
judicial system. Here the legacies of the past impacted so powerfully on the
judiciary that they impeded any concrete reforms.
Another important explanation for the presence versus absence of conflict relates
to the EU’s capacity to empower domestic interests. Study of the South-East
European countries shows that progress in judicial reforms, more than in other
fields, can be achieved through the alignment of elites’ interests with the EU’s
goals. The cases of Croatia and Serbia are exemplary in this regard: the former
when in 2009 the HDZ leader accelerated rule-of-law reform at a time when the
5.4 Judicial Networks as the Missing Link in Promoting EU-Driven Judicial Reforms? 119
EU’s pressure coincided with the interests of the new HDZ leadership in guarantee-
ing its political credentials after 2009.
In 2010 and 2011, pressure by the Commission and the threat of delayed
Schengen entry rekindled reform in Romania because the political elites understood
that public opinion perceived the Schengen issue as being of key importance and
that entry was what voters wanted (Spendzharova and Vachudova 2012).
5.4 Judicial Networks as the Missing Link in Promoting

EU-Driven Judicial Reforms?
As said throughout this book, judicial reform can be considered in every respect an
area of high politics (Magen and Morlino 2009), in which the distribution of the
costs and the benefits deriving from these reforms becomes extremely complex.
The interests at stake are those of political, bureaucratic and judicial actors. Judicial
reforms are a specific policy domain involving a professional group (judges and
prosecutors) which is an actor crucial for the enactment of reforms. In this sector,
more than in others, the consensus or at least the involvement of judges’ represen-
tatives seems to be a condition sine qua non for long-run reform outputs. The
inability of judges to act collectively in counterbalancing political power can be
regarded as one of the reasons for Serbia’s long and difficult reform path.
The perceived need to involve judicial actors and stakeholders more closely was
one of the factors that induced the EU to build a new comprehensive strategy for an
EU Area of Justice that complemented, and in some ways superseded, the
enlargement-driven promotion of the rule of law.
The EU is currently engaged in a unprecedented process of building a common
and reliable Area of Justice based on cooperation and trust among member states
and national judicial institutions. In so doing, the EU (namely the EC) together with
the Council of Europe, is actively engaged in externally promoting harmonization
and cooperation among national judiciaries (Piana 2012). The existence and the
enforcement of common rule-of-law (RoL) standards and principles is a
pre-condition for fostering pursuit of these goals. The expression was inserted in
Article 2 TEU as one of the Union’s key values, together with democracy, freedom,
and respect for human dignity.7 It is for this reason that respect for RoL is one of the
fundamental criteria that candidate countries had to fulfil in order to join the EU and
7
As Pech (2009) points out, the 2007 Lisbon Treaty, which entered into force on 1 December
2009, merely reproduced the provisions previously contained in the Constitutional Treaty. Hence
the Treaty on European Union (TEU) now contains a provision known as Article 2 TEU which
provides that: “The Union is founded on the values of respect for human dignity, freedom,
democracy, equality, the rule of law and respect for human rights, including the rights of persons
belonging to minorities. These values are common to the Member States in a society in which
pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men
prevail”.
that each member state must guarantee. During the mid-1990s, the EU’s RoL
promotion was mainly exercised in the context of the enlargement policy, with
minor effects on the old EU member states.
Then, with the beginning of the new millennium, the EU started to pay closer
attention to justice issues and began effectively to realize its action in the field of
judicial cooperation.
More recently, the Stockholm Programme has placed direct contacts between
judges and officials in areas covered by Justice and Home Affairs among the key
mechanisms to foster mutual trust and effective cooperation among judicial sys-
tems. Likewise, also the Lisbon Treaty has promoted the use of ever more intense
forms of collaboration among national judicial systems with the purpose of favor-
ing EU integration.
The EU’s future goal is to create a European Area of Justice as a “common
judicial space” based on the principle of the mutual recognition of judgements and
judicial decisions. As a consequence, the functioning of this area is strongly
dependent on a higher degree of mutual confidence among the members involved.
Operational cooperation between courts and judicial authorities would be easier if a
minimum standard of harmonization among the EU judicial systems were reached.
The bulk of research on judicial systems in Europe finds that harmonization can be
more efficiently fostered not only by relying on the application of EU legislation,
but also by diffusing practices and routines already internalized and developed by
national courts and actors from a bottom-up perspective (Piana 2010, 2012; Contini
and Lanzara 2008; Guarnieri and Piana 2011). The Hague Programme also
emphasised that the effectiveness of existing instruments on mutual recognition
should be increased by standardizing procedures and documents and by developing
minimum standards of information delivery, procedural law, judicial and extra-
judicial documents to start proceedings, enforcement of judgements, and transpar-
ency of costs. These are the new challenges for the EU’s promotion of the rule
of law.
Thus, as Dallara and Piana (2014) point out, at present RoL promotion is mainly
exercised in a networked form that can be conceived as a process through which
actors, located at different levels of governance, create, diffuse, enforce, and
dismantle procedures, routines, policies and standards of RoL and quality of justice.
Instruments which range across a wide spectrum, from advising to standard setting
to training, are used and put in place by each of the actors to promote and, in some
way, protect the ROL. The main feature of this new EU rule-of-law promotion
strategy consists in collaboration, more and less formal, with other actors outside
the EU institutions.
Vauchez (2008) focusing on the European legal space, also emphasises that
lawyers and legal experts, by acting through multiple networks among the Euro-
pean institutions, contribute to the construction and legitimization of a specific
political order. By operating in legal and political arenas of mediation at European
level, they actively contribute to the creation and operation of a new European legal
field. During the past decade in Europe, not only have networks of lawyers gained
in importance, but networks of judges and prosecutors have set new standards of
5.4 Judicial Networks as the Missing Link in Promoting EU-riven Judicial Reforms? 121
quality of justice and delivered recommendations regarding the implementation of

judicial independence principles. Through collaborative work and meetings orga-
nized within judicial networks, judges enforce their routines and modes of interac-
tion. These networks have been particularly important in enabling judges and
prosecutors in the newly democratic states of Central and Eastern Europe and the
Balkans to discuss changes in their legal systems and spread new ideas and legal
ideologies.
With reference to the candidate countries for EU membership, some scholars
(Parau 2010) argue that translational legal and judicial communities exert a sort of
“extra conditionality” on candidates in the field of judicial governance. In this
regard, although it is not a specific focus of this book, comparative analysis of the
four case studies evidences that judges in Slovenia and Croatia were actively
participating in these networks already at the beginning of the 2000s, and that
they regarded them as important sources of inspiration and legitimization of their
work. In Romania, numerous judges were likewise participating in supranational
networks, but the existence of many different judicial associations, differentiated by
the territorial belongings, decreased the efficacy of their action as a unitary actor. In
Serbia, by contrast, the fact that national judges started to look for a supranational
“anchor” (Morlino 2003) of legitimization or inspiration later than in the other
countries may explain their weak capacity for action as institutional stakeholders
involved in the reforms. A new strand of research is investigating how transnational
legal and judicial communities can act as “external agents of change” by promoting
EU-driven models of judicial governance and protecting the RoL principles
(O’Meara 2011; Benvenuti 2013; Dallara and Piana 2014; Amato 2014).
This role of “external agents of change” exercised by supranational judicial
networks and commissions has been particularly important in the cases of attempts
to reverse the rule of law in Europe during the past 3 years. After the constitutional
crisis in Hungary, then in Romania and, though less explicitly, in Poland, the EU
rule of law standards were through a drastic gap of legitimacy (Coman 2013). The
EU, for its part, has not concealed these shortcomings and has explicitly asked for
the help of the Council of Europe and its judicial commissions (among them the
Venice Commission, the Consultative Committee of the European Judges and that
of the European Prosecutors) to intervene in pressurizing national governments and
national courts to maintain the rule-of-law standards. Similarly, concerning all
aspects relative to the training of judges, the EU is delegating to the European
Judicial Training Networks programmes and reform initiatives also in the Western
Balkan candidate countries.
The increasing involvement of judicial networks and commissions in
enlargement-related judicial reform policies may account for the EU’s increasing
awareness of its weak and halting normative power in judicial policies as confirmed
by cases described in this book.
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Contributions to Political Science

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Democracy and Judicial

ISBN 978-3-319-04419-4 ISBN 978-3-319-04420-0 (eBook)

© Springer International Publishing Switzerland 2014

Printed on acid-free paper

Springer is part of Springer Science+Business Media (www.springer.com)

The present expansion of judicial power in Europe—a worldwide phenomenon

from improper outside pressures—is deemed to be an essential tool for achieving

Bologna, Italy Carlo Guarnieri

analyzed and in Brussels, where I met judges, prosecutors, ministry of justice

3 The Successful Laggard in Judicial Reform: Romania Before and

5.3 Lessons Drawn and Future Challenges: Beyond Conditionality? . . . 116

The breakdown of authoritarian regimes in Eastern Europe and the incremental

programs of scientific foundations such as the Open Society Institute (EUMAP—

In spite of these specificities, the same tools (conditionality, socialization,

Country Status relative to the EU

importance of the membership perspective credibility,17 as well as of the sanctions

Bologna, Italy Cristina Dallara

1.1 Judicial Reforms in Transition: Main Theoretical

C. Dallara, Democracy and Judicial Reforms in South-East Europe, Contributions to 1

The second explanatory assumption—which emphasizes the self-interest strate-

1.2 The EU Policy Promoting Judicial Reforms

The adoption of the Copenhagen Criteria, in 19935 may be seen as a turning-point

1.2.1 The EU Political Conditionality and Socialization

In order to understand the logic of EU democracy and rule of law promotion

During the enlargement process, the EU increasingly used socialisation efforts

1.2.2 The EU and the ‘Potential Candidates’: Any Lessons

of candidate country for EU membership. Among the requirements that these

The specificity of the EU conditionality in relation to state sovereignty and

dilemma can be summarized as an increasing awareness of the importance of the

1.2.3 Monitoring Countries Progress Towards the Accession

Fig. 1.1 EU external

1.3 Beyond the Domestic Level: The Interaction Between

After 2000, theoretical frameworks used to analyse judicial reforms in post-

institutional outcomes (Hughes et al. 2004). These theoretical considerations are at

1.3.1 The Enlargement (East) Europeanization

and the formality of the recommendations (Schimmelfennig and Sedelmeier 2005).

1.3.2 Towards a Contextualized Domestic Influence

The limitations of the one-dimensional top-down approach to EU conditionality

1.4 Research Framework and Methodology

Thanks to the studies on the Eastern EU enlargement process summarized above,

continued to be strictly linked to past frameworks of organization of the judiciary

2.1 Background Conditions: Justice System During

C. Dallara, Democracy and Judicial Reforms in South-East Europe, Contributions to 31

as a result, membership of the Communist Party constituted a criterion for election.

practice procedures protecting the independence of the institution vis-à-vis other

2.2 Slovenian Pre-accession

2.3 Judicial Reform in Slovenia

appointments were reported by the international observer (EU Regular Reports,

2.4 Croatia and the EU: The Long, But Successful,

Homeland War. In spite of these problems, cooperation with the neighbouring

2.5 Judicial Reforms in Croatia

Croatia is considered another case of success in terms of judicial reform outcomes.

2.5.1 From Politicization of the Judiciary to the First

In regard to the specific organization of the judiciary, Uzelac (2000) describes

2.5.2 The Real Push Towards Judicial Reform (2004–2013)

attempt to conclude the EU accession negotiations and to secure Kosor’s political