MASARYK UNIVERSITY Faculty of Social Studies Department of International Relations and European Studies

Mgr. Vladimir Vučković

EU’s Failure in Europeanizing Montenegro

Doctoral Thesis

Supervisor: Prof. PhDr. Vít Hloušek, Ph.D.

Brno 2018

I declare that I have worked on this thesis independently, using only the primary and secondary sources listed in the bibliography.

In Brno, 20.04.2018 ………………….……… Mgr. Vladimir Vučković

Contents

1. Introduction 10 1.1 Structure of the Volume 19

2. Positioning a Research Agenda 20 2.1 Research Dilemma 20 2.2 Definition of Research Subject 27 2.3 Literature Review 31

3. Theoretical Background 36 3.1 Rational Institutionalism – Logic of Consequences 38 3.2 Constructivist/Sociological Institutionalism – Logic of Appropriateness 42

3.3 Aim of Research 45 3.4 Main Research Question 45

4. Methodological Framework 46 4.1 Research Outset 46 4.1.1 Specific Research Questions 46 4.1.2 Basic Approach of Data Collection 47 4.1.2.1 Case Study Method 47

4.2 Research Focus 48 4.3 Operationalization of Research 51

4.3.1 Methods of Data Collection 51 4.3.1.1 Qualitative content analysis – Direct content analysis 51 4.3.1.2 Normative and Empirical Analysis 53 4.3.2 Top-down and Bottom-up Approaches 55 4.3.3 Limitation versus Contribution of Research 56

5. Empirical findings 57 5.1 Judicial Reform in Montenegro 57 5.1.1 The Union-driven judiciary reform pressure and the domestic response 57

5.1.1.1 Pre-negotiating stage 57 Judicial independence Judicial accountability Judicial effectiveness Judicial efficiency 5.1.1.2 Negotiation stage 79 Judicial independence Judicial accountability Judicial effectiveness Judicial efficiency 5.1.2 Conditional inconsistency in the EU’s approach and the state’s selective fulfilment of judicial reform demands 104

5.1.2.1 Pre-negotiation stage 104 Explaining trends in partial fulfilment of judicial reform requirements during the pre-negotiation phase

5.1.2.2 Negotiation stage 115 Explaining trends in partial fulfilment of judicial reform requirements during the negotiation phase

5.1.3 Conclusion 128

5.2 Fight against corruption in Montenegro 155 5.2.1 The EU transformative power in anti-corruption and domestic change 155

5.2.1.1 Pre-negotiating stage 155 Prevention of corruption Investigation, prosecution and final conviction of high-level corruption cases 5.2.1.2 Negotiation stage 174 Prevention of corruption

Investigation, prosecution and final conviction of high-level corruption cases 5.2.2 Conditionally reluctant pressure by the EU and the country’s poor results in the fight against corruption 181

5.2.2.1 Pre-negotiation stage 181 Explaining trends of the state’s non-fulfilment of the anti-corruption policy requirements during the pre-negotiation phase

5.2.2.2 Negotiation stage 203 Explaining trends of the state’s non-fulfilment of the anti-corruption policy requirements during the negotiation phase

5.2.3 Conclusion 217

5.3 Regional cooperation and developing good bilateral relations with the enlargement countries and Member States 240

5.3.1 The SAP conditions and domestic alignment 240 5.3.1.1 Pre-negotiating stage 240 Contribution to peace and stability in the region by active participation in regional initiatives Reconciliation and climate conducive to addressing open bilateral issues and legacies of the past 5.3.1.2 Negotiation stage 252 Contribution to peace and stability in the region by active participation in regional initiatives Reconciliation and climate conducive to addressing open bilateral issues and legacies of the past 5.3.2 Fulfilment of the SAA criteria as essence for the state’s advance in the accession process 264

5.3.2.1 Pre-negotiation stage 264 Explaining positive trends in addressing regional cooperation and maintaining bilateral relations requirements during the pre-negotiation phase

5.3.2.2 Negotiation stage 273 Explaining positive trends in addressing regional cooperation and maintaining bilateral relations requirements during the negotiation phase

5.3.3 Conclusion 280

6. Discussion on mechanisms of Europeanization presented in the case study of Montenegro 284

Applicability of the theoretical framework to the Western Balkans complexity and influence of international factors 288

Insufficient interplay of the EU-domestic factors and influence of Russia as the undermining actor 298

Conclusion 299

7. Bibliography 304

7.1 Primary Sources 304 7.2 Secondary Sources 315

List of Tables and Appendices

Table 1: State of play: Advancement of the Western Balkans in the accession process

Table 2: Alternative mechanisms of Europeanization

Table 3: Theoretical framework: Europeanization of candidate and new member states

Table 4: List of methods of data collections which are coupled with specific research questions

Table 5: Bilateral disputes between Montenegro and neighbouring countries during the pre- negotiation phase 2007 – 2012

Table 6: Bilateral disputes between Montenegro and neighbouring countries during the negotiation phase – 2012 – 2017

Appendix 1: Judicial Reform in Montenegro – Normative and empirical analysis of EU – Montenegro documents for a period 2006-2017

Appendix 2: Anti-corruption policy in Montenegro – Normative and empirical analysis of EU – Montenegro documents for a period 2006-2017

Abbreviations

Adriatic and Ionian Initiative – AII Agency for Anti-Corruption Initiative – AACI Bosnia and Herzegovina – BIH Central and Eastern Europe – CEE Central European Initiative – CEI Central European Free Trade Agreement – CEFTA Centre for Security Cooperation – RACVIAC Civil society organizations – CSOs Commission for Prevention of Conflict of Interest – CPCI Council of Europe – CoE Criminal Procedure Code – CPC Democratic Party of Socialists – DPS Democratic Front – DF Directorate for Anti-Corruption Initiative – DACI European Union – EU European Commission for the Efficiency of Justice – CEPEJ Former Yugoslav Republic of Macedonia – FYRoM International Criminal Tribunal for the Former Yugoslavia – ICTY International Court of Justice – ICJ Instruments for Pre-accession Assistance – IPA Judicial Training Centre – JTC Judicial Information System – PRIS Mediterranean programme – MED Migration, Asylum, Refugees Regional Initiatives – MARRI National Program for Integration – NPI Non-governmental organizations – NGOs Organization for Security and Co-operation in Europe – OSCE Regional Cooperation Council – RCC Regional Youth Cooperation Office – RYCO Regional and Cross-Border Cooperation – CBS South-East European Cooperation Process – SEECP South-East European Cooperation Initiative – SECI South East European Space – SEES Special Investigation Team – SIT Stabilization and Association Agreement – SAA Stabilization and Association Process – SAP State Auditing Institution – SAI State Election Commission – SEC Treaty establishing a Constitution for Europe – TCE Union of Turkish Business and Chambers of Commerce – TOBB Western Balkan countries – WBs Western Balkan Six – WB6 Western Balkans Chambers Investment Forum – WBCIF Western Balkans Funds – WBF

Ackowledgments

Primarily, I would like to express my sincere gratitude to my supervisor, Prof. PhDr. Vít Hloušek, Ph.D., for his continuous help, brilliant supervision, creative ideas, and quick feedback. This thesis is a product of fruitful cooperation with Professor Hloušek during a four- year doctoral study period at the Masaryk University, and I cannot be more than thankful to him and his commitment, encouragement and patience during the process of writing a dissertation. Secondly, I would like to thank to Associate professor Hans Agné, with whom I worked during my study period abroad at the Department of Political Science, the University of Stockholm where I wrote a part of my empirical findings. His ideas represent an important contribution to the completion of my dissertation. Thirdly, I cannot be more than grateful to my colleague and friend Vladimir Đorđević, Ph.D., his professionalism along with a number of valuable remarks in order to improve my work. And finally, I am deeply thankful to Mirjana, and to my family Vera, Zoran, and Ana for all these years during which they supported me in writing and completing the thesis. None of this would happen if there was no support from you.

Brno, April 2018 Vladimir Vučković

Abastract

This research aims to examine Europeanization of Montenegro as a good new story example of the Western Balkans through EU impact on domestic governmental changes by focusing on three political membership conditions: judicial reform, fight against the corruption, and strengthening regional cooperation and development of good neighbourly relations. The study is based on the argument of the EU transformative power having produced negatively reinforcing effects in key accession criteria in the candidate country in the period between 2007 and 2017, which significantly differs from outcomes of a considerable number of Europeanization scholars. The given deficiency of fulfilment of political conditions in Montenegro is, on the one hand, primarily the result of an inconsistent and inefficient EU conditional policy, and unfavourable domestic factors to appropriately conduct reform activities, thus resulting in generally weak and mitigating reform progress. In addition, in line with the applied theoretical approach, it reveals that the Europeanization theory as presented by Schimmelfennig and Sedelmeier is not fully applicable to the complex processes in the Western Balkans. It requires additional academic attention in redefining current theoretical concepts so as to be properly adjusted to specific Western Balkans circumstances and conditions. This research, therefore, shall provide insights in this regard by filling the existing research gaps in the appropriate academic scholarship, particularly so in the field of European integration, EU studies, small state studies and the Western Balkans politics in general.

Keywords: EU, Europeanization, conditional policy, membership criteria, Montenegro

1. Introduction

Like all Western Balkan countries (WBs), Montenegro has defined integration into the European Union (EU) as its main strategic and foreign policy priority. Shortly after declaring independence from Serbia in 2006 and up to current times, Montenegro has made an evident progress in addressing the Copenhagen criteria and complying with the acquis communautaire (acquis). As result, Montenegro has positioned itself as the regional frontrunner among the Western Balkan states. As of 11 December 2017, 30 negotiating Chapters, including the rule of law Chapters, 23 – Judiciary and fundamental rights and 24 – Justice, freedom and security, have been opened, out which three Chapters (25 – Science and research, 26 – Education and culture, 30 – External relations) have been provisionally closed (Delegation of the European Union to Montenegro 2018a).

Fast advancement of Montenegro in the accession process has been continuously monitored and supported by high-ranking EU officials. Often-heard statements by the former EU Ambassador to Montenegro, Leopold Maurer, and the European Parliament Rapporteur on Montenegro, Charles Tannock, highlighting that the country remained “regional EU integration leader,” “good news story,” and “success European story through overall progress in the negotiations, and more importantly, through reforms in the areas of rule of law and the fight against corruption and organised crime” have remained a testament to Montenegrin success story (Maurer 2008; Tannock 2013; Tannock 2017; European Conservatives and Reformist Group – ECR 2017). Similar claims to the state’s progress was emphasized, for instance, by Federica Mogherini, High Representative/Vice-President, in her speech when addressing the Parliament of Montenegro in March 2017, by stating that during the last decade Montenegro has made incredible progress. Additionally, Jean-Claude Juncker, European Commission President, during his visit in February 2018 highlighted the country’s substantial efforts in the field of European integration by progressing faster than other countries of the region thanks to serious reform having been implemented (European Union External Action 2017; Delegation of the European Union to Montenegro 2018b).

After gaining its independence until now, Montenegro has made a quick progress in the European integration process as a result of two lucky factors: status of the country, which is not contested either externally or internally, and unanimous consensus of all political parties on the EU membership issue (Keil 2013: 350). Still, Montenegrin advance in the accession

10 process does not seem to depend on the capacity of domestic actors to induce governmental structural changes. Rather, it is a completely driven project in which the EU has positioned itself as a major actor of domestic change (Keil and Arkan et. al 2015: 83). However, although academic literature in the field suggests that the country has accelerated faster in the EU integration process than any other state from the region, scholars within the Europeanization and EU studies, on the other hand, have been united in common belief that the EU externally- driven pressure imposed by the conditional policy has overall resulted in a limited impact on domestic changes in Montenegro.

Unlike the praise of EU officials of Montenegro as a state of “good news of EU integration,” “lighthouse of EU,” and “champions of EU integration,” and also theoretical clams of limited effects on Europeanization of the candidate country, this research argues that the EU has essentially failed to induce pressure over Montenegro in order to comply with political conditions in the accession process. Respectively, this study is based on the argument of the EU transformative power having produced negatively reinforcing effects in key accession criteria in the candidate country in the period between 2007 and 2017, which significantly differs from outcomes of a considerable number of Europeanization scholars.1 The given deficiency of fulfilment of political conditions in Montenegro is, on the one hand, primarily the result of an inconsistent and inefficient EU conditional policy, and unfavourable domestic factors (lack of political will above all) to appropriately conduct reform activities, thus resulting in generally weak and mitigating reform progress. In this respect, this research claims that the EU foreign policy in the form of the enlargement process more likely contains characteristics of farce in the process of European integration of Montenegro. This particular point may be witnessed not only when the case of Montenegro is taken into consideration, but also when the rest of the Balkans is, in terms of the EU enlargement policy that is, analysed.

Overall conditions under which the EU has imposed its pressure in Montenegro in order to address political criteria may thus be seen as an essentially faulty and uneven approach of the Union to the integration process. Arguably, this long lasting and faulty approach of the Union towards Montenegro for more than a decade now is primarily the product of co-relations between the EU and domestic factors significantly mitigating the process of effective implementation and enforcement of the EU rules and norms. On the one hand, Montenegro has been externally challenged with a far more complicated, demanding, and strict accession

1 Börzel and Risse 2012; Börzel 2011; Elbasani 2013; Sedelmeier 2011; Frayburg and Richter 2010; Keil 2013; Noutcheva 2009; Noutcheva and Aydin-Düzgit 2012.

11 criteria, newly proclaimed principles of the EU conditionality (consolidation, conditionality, communication, integration capacity, concrete results, common values, etc.), ineffectiveness of the EU as a state-building actor, and enlargement fatigue. As a result, the EU has defined the accession process as an “open-ended process,” being reluctant to provide any commitment towards precise timetable for the accession of the country to the Union. On the other hand, a certain set of internal problems, such as various limited statehood issues and strong influence of autocrats and/or other veto players, have substantially restrained the EU transformative power on domestic political changes. Therefore, the enlargement process without a goal and sort of the accession without a credible membership perspective, followed by the state’s insufficient fulfilment of the conditions due to strong influence of veto players, is defined as the EU charade in the EU integration process of Montenegro (Beiber 2011: 1785, 1793; Elbasani 2013: 11-14; Đurović 2012: 334; Keil 2013: 349; Börzel 2011: 11; Keil and Arkan et al. 2015: 16; Kmezić 2017: 149-151; Gateva 2015: 141-144; Samaradžić 2016: 333-334).

Notably, this sort of the EU charade towards Montenegro in the accession process is particularly visible in the Union’s inconsistency and ineffectiveness to impose its conditional pressure over the candidate country to effectively align with the EU requirements.2 Following the EU’s insufficient conditional policy approach, one might observe the integration tendencies of Montenegro continuing to advance in the accession process but demonstrating political unwillingness of its ruling elites to actually fulfil the Copenhagen political criteria. Hence, the EU-externally driven pressure has applied the strategy of permissiveness during the whole integration phase by at the same time allowing the candidate country to select and tackle certain political criteria based on which the country can advance in the given integration process. Consequently, Montenegro has been given the chance to recourse to an essentially selective approach of fulfilling certain conditions by addressing easier political demands rather than harder ones.

However, although one might be certain about the Union’s deficient reinforcing effects over the state’s alignment with the given EU requirements, the question warranting interest and attention here is why the EU has actually created the given charade over its conditional approach towards Montenegro during the whole integration phase. Equally important question

2 Under the term ‘EU charade’ the author does not have any intention of slandering the EU, but to explain circular and superficial character of the EU engagement.

12 is why the Union hasn’t sufficiently focused on this process on Montenegro but on the entire Western Balkans region also.

This study provides several assumptions which might be tested and therefore used as valuable explanations for overall problematic process of Europeanization of Montenegro as conducted by the EU.

Firstly, the EU has aimed to preserve legitimacy of the integration process in Montenegro and in the Western Balkan states. In particular, in order to maintain regional political stability, the EU has been involved in the externally driven conditionality process by compliance in the Western Balkans by using a wide range of mechanisms, notably implementation of the EU-related legislation framework (alignment with acquis), technical and financial support though the TAIEX and TWINNING projects aiming to enhance capacity- building measures, Instruments for pre-accession assistance (IPA), and socialization through political dialogue and technical cooperation (Schimmelfennig and Sedelmeier 2005: 2; Börzel and Risse 2012: 195). However, although the EU has introduced various technical and financial assisting mechanisms in order to accelerate the candidate country advancement in the accession process, its reluctance to reaffirm a credible membership perspective along with establishment and specification of additional conditions in the form of introduction of opening and interim benchmarks and of the disequilibrium clauses, has been reflected in the candidate country’s intention to reconsider its own geopolitical and foreign policy interests. It is not a rare case that semi-authoritarian leaders in the Western Balkans largely use the logic of bargaining by choosing policies of alternatives instead of opportunities, consequently opting for certain international actors providing higher benefits than others. For instance, in the case of Serbia, the EU has established “disequilibrium case” which can potentially postpone advance in the accession process of this country if normalization of relations between Belgrade and Priština becomes compromised. As a result, Serbia as the main regional actor has changed its geopolitical and foreign policy perception, consequently strengthening cooperation with Russia by signing a number of economic, security, and military agreements, thus at the same time sending a clear message to the EU that it game is not the only game in town.

Secondly, it is quite clear the Union has kept enlargement charade on top of its foreign policy agenda due to strong involvement of other international factors, such as Russia, in the Western Balkans region. Without any doubt, strong historical, cultural, political, and economic influence of Russia in the Balkans as its traditional sphere of influence substantially raises

13 serious concerns within the EU and its proclaimed foreign policy activities towards maintaining regional peace and stability. Given Mearsheimer’s (2001) theory of neorealism as based on the concept of “offensive realism,” it seems as if the EU and Russia are continuously trying to maximize their respective powers in the region by looking for opportunities at the expense of other rivals. In other words, the Union is seeking to reduce and weaken Russian impact in the region by providing a wide range of accession advancement rewards (i.e., potential membership perspective, signing of the SAA and it entering into force, granting the candidate status and opening the accession negotiation) and financial rewards (i.e., IPA), while on the other hand, Russia uses various soft and hard power means in order to destabilize the region and therefore destabilize the Union itself. Nevertheless, existence of the EU potential membership perspective remained a solid leverage for the Western Balkans, especially for Montenegro and Serbia, in order to keep them under the Union umbrella of influence, mostly because Russia has been reluctant to provide the region with an alternative perspective for achieving stability and prosperity when compared to the EU integration process. Advantage is obviously on the EU side, since the EU external positive incentives, given the fact that Russia does not have any long-term strategy for development of its relations with the Western Balkans, are very powerful and tempting.

And thirdly, final assumption of maintaining the EU conditional policy circus is based on the claim that the Union has recognized Montenegro as an important regional factor of reconciliation and also a reliable actor of development of good bilateral relations with the enlargement countries and the EU member states as one of the essential condition for moving forward in the accession process. Out of the question, based on the introduced range of external incentives (rewards and threats), the EU has relied substantially on the principle of carrot instead of stick, thus aiming to improve conditions for strengthening fragile regional cooperation in the Western Balkans. Therefore, due to Montenegrin commitment over development of regional cooperation and maintaining good neighbouring relations, the Union has started to present Montenegro as a reliable factor of regional stability and a positive example of European Integration, hence a sort of a role model in an already quite problematic region.

Above-presented assumptions have a stronghold in theoretical concept of Europeanization of non-member states. Arguably, following the most general proposition of the EU external incentives model under the EU conditional strategy of reinforcement by reward, which foresees target government aligning with the EU conditions if provided benefits

14 of the EU rewards exceed domestic adoption costs, it might be reasonable to assume that the cost-benefit calculation depends on a certain set of external factors, such as size and speed of rewards (preservation of legitimacy of the EU integration process), and credibility of threats and promises (strong involvement of other international factors and regional stability being maintained).

Importance of investigating the case study of Montenegro has become even more relevant after the introduction of strategy of “A credible membership perspective for and enhanced EU engagement with the Western Balkans” by the European Commission in February 2018 (European Commission 2018). Undoubtedly, geopolitical significance of the region for the EU has increased substantially after growing involvement of other powers and their respective use of soft power influence in the same area, namely Russia, China, and Turkey. As result, the EU has finally decided to provide a credible membership perspective to Montenegro (but also to Serbia) by introducing a clear opportunity to join the Union by 2025, given the existence of strong political will to deliver real and sustained reforms, especially in the field of rule of law and resolution of open bilateral disputes with the neighbouring countries.

Although the EU has demonstrated visible gaps in its approach, one can still call Montenegro a success story of Europeanization in the given region, with research outcomes that could be applicable and transferable to the rest of the Western Balkans as well. In line with the provided credible perspective, the study has selected Montenegro as a good new story example of the EU enlargement policy which could be applied and transferred to the case of the Western Balkans as a whole, particularly due to its successful advance in the accession process and its particularities within the political system:

1) Montenegro has positioned itself as a frontrunner in the WBs within the process of integration; 2) Since 2012, and in line with opening of the accession negotiations with Montenegro, new pre-conditions for the WBs have been specified in terms of dynamics of opening negotiation chapters: accession negotiation start with Chapters 23 and 24, and they have become the very heart of the accession process by focusing on the rule of law requirements together with constant evaluation and monitoring during the entire accession process; 3) There is a unanimous consensus of all political parties in Montenegro on the EU membership;

4) After an eight-year pause in NATO enlargement policy, Montenegro has become 29th member state of the Alliance in 2017, which means that the country has fulfilled necessary requirements within the rule of law reforms, which was an equally demanding and complex process similar to the EU enlargement policy; 5) Within the SAP conditionality framework, Montenegro has sought to play a constructive role in improving regional cooperation and maintaining good neighbourly relations through its active participation in various regional initiatives by contributing to stability and reconciliation, and a climate conducive to addressing open bilateral issues and legacies of the past; 6) Although the country is the youngest NATO member and has obtained the status of leader in the EU enlargement process, the country still suffers from weak governance and widely perceived corruption and politicized judiciary, which can also be seen in the rest of the region; 7) Montenegrin society is a deeply divided society; 8) And finally, as is the case with the region as a whole, Montenegro is strongly subjected to the influence of “stabilitocracy”: weak democracy with autocratically- minded leaders who govern through informal patronage networks and claim to provide pro-Western stability in the region.

Results of applied analytical concept and empirical findings shall be beneficial not just for the case study of Montenegro, but also for the whole Western Balkans region. Primarily, this study is to provide scientific insights of special importance on whether Montenegro has truly earned the status of the regional frontrunner due to its undisputable commitment to the EU accession processes, or it has visibly moved forward due to the EU’s permissiveness when the rest of the region substantially lagging behind in the EU integration process is taken into consideration. Also, following the new conditional accession approach since 2012, examining the case study of Montenegro shall provide explanations with reference to evolution of the EU enlargement conditional policy, reward-threat balance (positive-negative incentives), and advanced monitoring mechanisms as identically applied to the rest of the region due to regional political particularities. At the end, the thesis shall also address the question whether and why the EU has prioritized its support of internal political stability, that is “stabilitocracy,” instead of adoption of the acquis and compliance with the EU conditions by taking into account that in most regional countries, Montenegro included, there are strong bonds between domestic ruling

16 elites (autocracies) and post-communist legacy in opposing effective implementation of the political membership requirements.

Therefore, main aim of the study is related to examining Europeanization of Montenegro through the EU impact on domestic governmental changes by focusing on three EU political membership conditions: judicial reform, fight against corruption, and strengthening regional cooperation and development of good neighbourly relations. This particularly means whether the EU externally driven pressure has influenced domestic institutional and policy changes and if and under what conditions adoption of the EU rules and norms has actually resulted in domestic structural alterations.

Based on the aforementioned, main research question has been formulated as follows: To what extent and how has the EU transformative power resulted in the institutional and policy changes in Montenegro? In order to provide insights with reference to Europeanization of Montenegro, this research has defined a subset of specific research questions which are strictly tied to the main research question, thus consequently providing guidelines for concrete operationalization of the research:

1) What EU demands have been introduced during the accession process? 2) Which EU incentives have been given? 3) Which domestic institutional and policy reforms have been conducted so far, and how have these reforms evolved across different stages of the accession process? 4) Are there any veto players who have opposed fulfilment of the EU conditions? If so, how has this particular issue affected the EU rules adoption, in what extent, and how and why have these actors actually stood opposed to the given reforms? 5) What are motivations of domestic ruling elites for the EU rules adoption, whether and why the process of Europeanization has become the EU-driven rather than domestically-driven agenda followed by different logic of consequence versus logic of appropriateness?

In line with the renewed consensus on enlargement in 2006 and new approach to the accession negotiations in 2012, the EU has highlighted growing relevance of the political criteria for the Western Balkans’ advancement in the enlargement process by emphasizing a full alignment with the rule of law and strengthening regional cooperation and development of good neighbourly relations requirements. More precisely, Montenegro’s progress towards the

EU membership entirely depends on the fulfilment of the accession conditions as set on three different levels:

1) the Copenhagen criteria – general conditions referring to stability of institutions guaranteeing democracy, rule of law, respect for and protection of human rights and minorities; 2) conditions which are specific, unique and common for the WBs, such as cooperation with the International Criminal Tribunal for the Former Yugoslavia (ICTY), strengthening of regional cooperation and improvement of good neighbourly relations, return of refugees and displaced persons, ethnic and religious reconciliation; 3) and finally, specific conditions pertaining to Montenegro, as in judicial reform, decisive fight against corruption and organized crime, state institution reforms, free and fair elections, and protection and improvement of human and minority rights (Miščević 2009: 151, 168; Đurović 2012: 324-327; Gateva 2015: 124-173).

Therefore, this research shall scrutinize three most prominent political conditions of the EU, that is judiciary reform, fight against corruption, and strengthening regional cooperation and development of good neighbourly relations, all of which are stipulated in the SAA and in the new accession negotiation framework, as these remain essential to the EU enlargement elements for further advance of Montenegro and completion of the accession process. Hence, this research shall not consider certain political accession criteria embedded in the SAA or in specific accession negotiation chapters. Apparently, some policies appear in all three levels, while in the case of Montenegrin cooperation with the ICTY, return of refugees, and ethnic and religious reconciliation the state has managed to regularly fulfil the requirements as stipulated in the SAA (European Commission 2012c: 16-17; 2013b: 10-12; 2014b: 21-22; 2015b: 21-22; 2016b: 21-22; Vučković 2016a: 45).

The study of Europeanization towards the EU candidate countries has become the most significant issue within the European Studies in recent years, especially in political discussions related to the given scholarship in the period prior to the fifth wave of enlargement in 2004. Most political scientists at that time focused on the issue of examining the EU transformative power on domestic political changes in Central and Eastern Europe (CEE) by using an essentially top-down approach (EU norms and rules as being downloaded). However, unlike favourable theoretical conditions within Europeanization of the CEE countries, the situation slightly differs when it comes to theorizing about Europeanization of the Western Balkans,

18 especially in terms of effective implementation and empowerment of the EU driven norms and rules and lack of political will to engaged in necessary reforms as requested by Brussels.

Thus, it might be reasonable to claim that scant literature in regards to Europeanization of the Western Balkans gives a special importance to this research area. In the case of the aforementioned region, scholars have demonstrated relatively limited interest towards examining impact of the EU on domestic changes (top-down approach) and have additionally failed to investigate both the role of domestic factors in the process of the EU integration and the range and scope of the WB domestic capacities in order to comply with the EU requirements (bottom-up approach).

In this particular regard, it is evident that scholars have devoted little attention to Montenegro as the EU candidate country by examining effectiveness of Europeanization following both top-down and bottom-up approaches. More specifically, by observing Montenegro as a separate case study within the European integration process, scholars have demonstrated limited interest in analysing the process of Europeanization in Montenegro through the EU impact on domestic political changes (policy, politics, institutions, process, actors, etc.) within the Union’s enlargement policy. This adds to very little interest having been shown on behalf of political scientists to analysing the issue whether and to what extent Montenegrin political conditions have actually undermined the EU transformative power.

Hence, taking into account the research findings, it is reasonable to conclude that current literature on EU demonstrates serious limitations in regards to assessment of effectiveness of Europeanization of Montenegro as the EU candidate country by investigating the EU influence on domestic changes and the causal response of domestic political factors. This research, therefore, shall provide insights in this regard by filling the existing research gaps in the appropriate academic scholarship, particularly so in the field of European integration, EU studies, small state studies and the Western Balkans politics in general.

1.1 Structure of the Volume

This research is split into seven sections and therefore organized in the following way:

The first section of the volume an introduction is aimed at presenting main argument of the thesis, importance of research subject, aim of research, main and specific research questions, research focus and significance of research area. In addition, the first chapter within

19 the section is directed at providing the structure of the volume. Positioning a research agenda is the second section of the volume which provides an explanation in regards to dilemmas of research, definition of research subject, and past research contribution within the field.

Theoretical background is the third section of the volume aiming to present theoretical argumentations of Rational Institutionalism based on the logic of consequences and of Constructivist/Sociological Institutionalism based on the logic of appropriateness in field of Europeanization, insights over aim of the research, and main research question. The fourth section of the volume entitles Methodological framework shall further elaborate the research outset by focusing on specific research questions and case study method as a basic approach of data collection, research focus, operationalization of research by paying attention to direct content analysis and normative and empirical analysis as methods of data collection, top-down and bottom-up approaches, and finally limitation versus contribution of the research.

Empirical findings are the fifth section of the volume which reveals the empirical results over judiciary reform, fight against the corruption, and strengthening regional cooperation and development good neighbourly relations by dividing each chapter on presenting normative analysis, empirical observations and explanations, and conclusion. The sixth section of the volume entitled Discussion on mechanisms of Europeanization presented in the case study of Montenegro is reserved for concluding remarks in regards to empirical results, discussion about applicability of the theoretical framework to the Western Balkans complexity and influence of international factors, insufficient interplay of the EU- domestic factors and influence of Russia as the undermining actor, and final conclusion. Bibliography is the last section of the volume comprising of various primarily and secondary sources.

2. Positioning Research Agenda

2.1 Research Dilemma

Among both academia and political elites, there is a generally accepted view that the process of Europeanization of the Western Balkan countries3 has become much more challenging, demanding, and complex than it was the case with countries of the CEE. Unlike the Eastern enlargement policy, which can be evaluated as a successful EU foreign policy, the WBs face numerous and serious obstacles, both external and internal, which prevent smooth reforms of their political, economic, and social systems. The enlargement fatigue, the lack of credible membership perspective, insufficient transformative effect of the current EU approach, flawed democracy, decline of democratic institutions, weak state capacities, autocratic rule, clientelism, corruption, historical legacy, secessionist movements, contested states, border issues, high unemployment, as well as the dysfunctional economy, are just some of the issues which have significantly hindered the development of the WBs (Elbasani 2013; Börzel 2011; Börzel and Risse 2012; Keil 2013; BiEPAG 2017; Bieber 2011; Kmezić 2017; Noutcheva and Aydin-Düzgit 2012; Freyburg and Richter: 2010; Dzihic and Wieser 2008). Obviously, these external and, perhaps more importantly, internal political and socio-economic problems have to a large extent called into question peace, stability, and security of the region, thus opening possibility for the Union to engage more actively in the process of building consolidated democracies and developed liberal economies in the region.

Literature on Europeanization demonstrates serious concerns regarding the future of the WBs due to a very limited EU impact on domestic politics, and points out to the fact that the Europeanization of the WBs is actually shallow. Although since the beginning of the 21st century the Union has adopted a number of strategic documents which confirm the WBs membership perspective, general impression is that this incentive has not resonated well enough among the regional countries. More specifically, taking into account individual integration dynamics of each country, the WBs have not adequately fulfilled the accession conditions stipulated by Stabilization and Association Agreement (SAA) as an integral part of the Stabilization and Association Process (SAP),4 nor have they adequately implemented the

3 The Western Balkan states is a name for a group of countries in South-East Europe which are not EU member states but they have expressed their willingness to join the EU. The Western Balkans include: Albania, Bosnia and Herzegovina, Kosovo, Former Yugoslav Republic of Macedonia (FYRoM), Montenegro and Serbia. 4 The SAP is the name for a comprehensive EU Strategic Approach towards the Western Balkans states, which entails a wide range of activities between these two subjects, the gradual adoption of EU laws, standards in various fields, and the definition of a model of cooperation with EU institutions. The most important instrument of SAP

21 acquis communautaire. Current regional situation can best be described as “consolidation of unconsolidated democracy,” demonstrating stagnation and backsliding in all key governance indicators, and, therefore, it is reasonable to claim that in all likelihood the WBs membership in the EU is not visible, at least not in mid-term period as such (Kmezić 2017: 48-49).

Shortly after it failed to adopt the Treaty establishing a Constitution for Europe (TCE) in 2005, EU started encountering serious structural problems (Fuše 2009: 27-33). More precisely, after the Union failed to adopt the Constitution of Europe, numerous internal problems started emerging and contours of new crises began to appear, such as crisis of EU institutional functioning (problems related to institutional structure and its governance), crisis of liberal democracy and of compromise-based decision-making and cooperation at the EU level, crisis of EU democratic qualities, and finally financial and economic crisis with particular problems in Eurozone functioning, unemployment, and public debt rising. In addition, current individual events and developments, namely the Brexit results in the United Kingdom (UK), rise of right-wing anti-immigrant populist parties and movements in Austria, Finland, France, Germany, Holland and Denmark, strong public support of far-right candidate of Austrian presidential elections, frequent attack of ISIS at the EU soil, victory of Donald Trump on election for president of United States (US), strengthening of authoritarianism in Turkey, and disappearance of liberal-democracies in Balkans are part of larger pattern that raised concern about the EU commitment to on-going accession process. However, although main causes of serious EU crises were seen in deep economic and financial collapse of the Union, these crises, on the other hand, have had a clear and profound impact on further EU enlargement process aimed at the Western Balkans. Therefore, the EU financial and economic crisis of 2008 was a typical systemic problem within the Union and it was not as such the result of any particular EU policy, nor in any way personal decision on part of EU governing structures (Samardžić 2016: 297-299, 333-334; BiEPAG 2016: 3; Ofe 2016: 9, 52-53).

Essentially, the EU crises had a profound effect on generally negative mood of the Union in terms of further enlargement. This negative mood was significantly enhanced among the EU member states due to ill effects of fifth wave of enlargement in both 2004 and 2007 that resonated with various problems in complex functioning of institutions and great burden of structural and cohesion funds of the EU itself, and saw the EU facing even greater

is SAA, contractual relationship between the country from the Western Balkans and the EU. For more details: Đurović 2012: 328-347; Miščević 2009: 150-152.

22 consequences in problems with employment policy and labour migration from East to West. In any case, the “EU enlargement fatigue” has demonstrated discrepancy between the enlargement process and necessity of deepening of the Union policies (i.e., issue of widening vs. deepening), which opened questions of the so-called absorption capacity of enlargement for a certain period of time. Following the case of South-Eastern enlargement, this particularly means that EU membership perspective of candidate (and potential candidate) countries has not changed in terms of normative process of accession, but rather that it has changed in terms of final goals of this process, i.e., accession into the EU itself. This process has in the time being become more like a movement without a goal and a sort of the accession without a credible membership perspective (Samardžić 2016: 299, 333-334).

In addition, besides the enlargement fatigue issues, EU has demonstrated certain discrepancies in terms of fulfilling the promise of the European future for the WBs from the beginning of the 21st century. In that regard, the EU has proven not to be an effective state building actor due to the lack of experience in state building processes, absence of clear criteria within the acquis communautaire, as well as notable disagreements which exist between different Union institutions and the EU member states in terms of state-building process (Bieber 2011: 1785, 1793; Keil 2013: 349; Börzel 2011: 11; Keil and Arkan et al. 2015: 16).

And finally, EU has introduced complex conditional strategy as a central part of its enlargement policy. The EU conditional policy entails a legal imposition and adoption of the EU rules and norms in domestic governing structures by following the principle of reward- threat balance, as well as constant application of overall monitoring mechanisms aiming to assess countries’ advancement in the accession process. Under this instrument, the Union provides a reward if the target accession country aligns with the conditions or withhold the reward if it fails to align. Thus, the policy of conditionality demands full a compliment with EU standards from aspiring countries followed by strict and precise procedure of monitoring and evaluation of each accession criteria during the whole accession phase. Also, through the accession conditionality, the EU has created highly asymmetrical and partly hierarchical relationships with the candidate countries by being actively engaged in process of state- building and democracy changes for which membership is to provide a key initiative. In line with the experience of on-going enlargement process, it is the EU strategy of conditional external initiatives based on “the principle of carrot and stick” which significantly undermines the Union’s credibility as a normative power, and, at the same time, negatively reflects on the region’s willingness and motivation to implement EU norms and rules as stipulated by the SAP

(Schimmelfennig and Sedelmeier 2005: 11; Börzel 2011: 12-15; Börzel and Risse 2012: 203; Notcheva 2009: 1081; Elbasani 2013: 8; Keil 2013: 348; Bieber 2011: 1791).

Essentially, in comparison to previous enlargement rounds, it is evident that the EU conditional enlargement policy towards the WBs has become more strict, complex, and demanding. In that regard, the transformation of the EU enlargement conditionality towards the South-Eastern Europe is characterized by clarification and specification of a range and scope of conditions, all of which may be classified in the following way: 1) growing relevance of the political criteria for the advancement of enlargement process by emphasizing a full alignment with rule of law requirements (i.e. judicial reform, fight again corruption and organized crime), together with strict fulfilment of the SAP specific conditionality (i.e. cooperation with ICTY, regional cooperation, solving bilateral disputes etc.), and introduction of opening5 and interim6 benchmarks which emerge as an essential element of the EU enlargement strategy during the entire stages of accession process, thus consequently transforming entire dynamics of the membership talks; 2) transformation of the accession negotiations into an “open-ended process,” which means that EU has been opposed to setting target dates for advancement of relations between the Union and candidate (and potential candidate) states; and finally 3) introduction of wide range of preventive and remedial sanctions, i.e., various EU measures in the form of suspending of implementation of SAA or postponing of the membership talks, as well as the establishment of “disequilibrium case”7 combined with eroded credibility of the membership perspective that has strengthened negative incentive structure (Gateva 2015: 124-173).

As a result, the progress of these countries towards the EU membership is limited. The EU transformative effect of the current EU approach for the WBs appears to be insufficient, mostly because conditionality does not work if the membership criteria are not clear, if the same criteria are not applied equally to all applicants, if they are not fairly monitored, if their findings are not transparently communicated, and if there is doubt that reward will come once

5 Benchmarks are measurable and linked with to key elements of acquis chapter. In general, opening benchmarks concern key preparatory steps for future alignment (such as strategies and action plans), and the fulfilment of contractual obligations that mirror acquis requirements. Closing benchmarks primarily concern legislative measures, administrative and judicial bodies, and a track record of implementation of acquis. For more details: European Commission Montenegro Report 2006a: 6; Gateva 2015: 124-173. 6 Interim benchmarks aim to further guide the reform process and keep the reforms on track. For more details: European Commission 2014: 12; Gateva 2015: 124-173. 7 In the case of Serbia, the EU has established “disequilibrium case” which can potentially postpone its advancement of accession process if the normalization of relations between Belgrade and Priština are compromised. For more details: European Commission 2014: 34; Gateva 2015: 124-173.

24 conditions are met. Clearly, this is the case of the Western Balkans accession as such (BiEPAG 2017: 14).

Table 1. State of play: Advancement of the Western Balkans in the accession process

First steps Albania Bosnia and FYROM Kosovo Montenegro Serbia to EU Herzegovina membership

SAA signed 12.06.2006 16.06.2008 09.04.2001 27.20.2015 15.10.2007 29.04.2008 SAA enforced 01.04.2009 01.06.2015 01.04.2004 01.04.2016 01.05.2010 01.09.2013 Membership 24.04.2009 15.02.2016 22.03.2004 15.12.2008 22.12.2009 application Commission 09.11.2010 09.11.2005 15.12.2008 14.10.2011 opinion Candidate status 27.06.2014. 16.12.2005 17.12.2010 01.03.2012 Council decision 26.06.2012 28.06.2013 to open accession negotiations

Starts of accession 29.06.2012 21.01.2014 negotiations

Progress Addressing key Waiting Start of the Visa Chapters Chapter (June 2017) key priorities Commission accession liberalization open: 26 open: 8 for opening opinion negotiations dialogue Chapters Chapter accession blocked blocked closed: 2 closed: 2 negotiations

Source: Gateva 2015: 133

At the internal level, democracy in the Western Balkans is in constant decline for decades. Therefore, most of the WBs can be best described as defective democracies. Although the WBs have demonstrated certain progress in the EU accession, it is evident that the advancement in accession process does not coincide with process of internal democratization.

In that regard, unlike the CEE countries, the WBs is faced with serious problems of limited statehood issues. Apart from the problems of contested states and growing secessionist movements in some regional countries, the common features for the WBs is that they all suffer from the issue of limited statehood, i.e. weak states with dysfunctional democratic institutions, existence and strong interference of autocratic leaders, weak state capacities, as well as institutionally-entrenched problems in corruption and clientelism (Börzel 2011: 10; Kmezić 2017: 49; Elbasani 2013: 12). Furthermore, institutions are not able to develop true independence and be free of autocratic leaders’ rule in informal power structures, state capture

25 by ruling parties, patronage and control over media. Safeguards such as independent media and strong democratic institutions are weak, and clientelism links many citizens to ruling elites through coercion. As a result, a limited statehood issue has been used as an advantage by autocrats to increase their political influence in fragile institutions as well as in legislation sphere, while at the same time being supported by the West in supposed role of reformists who preserve internal political stability, i.e. “stabilitocracy” (BiEPAG 2017: 3, 6-7).

Thus, the stateness problem continues to be the main domestic impediment towards the EU membership, which largely affects both the capacity and willingness of the WBs to effectively comply with the Copenhagen membership criteria. Due to various lacks in state- building process, EU has demonstrated inconsistency in its flawed dealing with this problem. While, on the one hand, EU has offered these countries a membership perspective to stabilize the region and overcome problems caused by weak and contested statehood, on the other hand, it is precisely the limited statehood of the WBs that has undermined regional compliance with EU norms and rules (Börzel 2011: 5).

Essentially, although the WBs have demonstrated visible progress in terms of formal institutional changes (adoption of EU rules and norms) aiming to strengthen democratic institutions and enhance capacity-building, the main issue of effective implementation and its enforcement of acquis communautaire has unfortunately remained unsolved (Börzel 2011: 9). In addition, the issue of functional adoption of acquis and policy alignment has been significantly hindered due to strong interference of autocratic leaders in all three branches, powerful influence of veto players, and lack of appropriate domestic administrative infrastructure, consequently resulting in the increase of corruption and clientelism within the WBs state institutions. Furthermore, the lack of credible EU membership perspective significantly challenges successful completion of reforming integration processes, where cost- benefit calculations play a dominant role with domestic ruling elites. Consequently, all these domestic political issues have had a negative implication on effective implementation of EU requirements and on further consolidation of democracy in the WBs, especially in the case of functional democratic institution-building and capacity-building process (Elbasani 2013: 12- 13; Keil 2013: 347; Bieber 2011: 1785; Kmezić 2017: 48, 148-151; BiEPAG 2017: 8).

To sum it up, these political impediments, namely the lack of credible membership perspective, stateness problem, and strong influence of autocratic leaders and/or veto players have seriously mitigated the Union’s transformative power on domestic structural changes in

26 the WBs, consequently providing conditions for jeopardizing further progress in the process of European integration.

Based on the aforementioned, research dillema is understood as examining the issue of capability and capacity of the WBs to successfully complete complex and demanding process of the European integration, particularly in the field of political membership criteria.

2.2 Definition of Research Subject

Based on provided research dilemma, this claim shall be further tested in the case of Montenegro as a “success story” of Europeanization of the WBs. More precisely, this study has selected Montenegro as a good new story example of EU enlargement policy which could be applied and transferred to the case of the Western Balkans as a whole, particularly due to its advancement in the EU accession process, and its particularities within the political system.

Hence, the case study of Montenegro has been used for this research based on the following reasons:

First, Montenegro has positioned itself as a frontrunner among the WBs within the process of the European integration. After the signing the SAA in 2007, Montenegro successfully completed the first integration phase for a short period of time, being granted with the status of the candidate country for the EU membership in 2010. Since 2012, the state has started the second integration phase, namely accession negotiation process which is more serious and complex than any other integration phase, especially in the terms of nature, content, scope and range of conditions. As of 11 December 2017, 30 negotiating Chapters, including the rule of law Chapters, 23 – Judiciary and fundamental rights and 24 – Justice, freedom and security, have been opened, out which three Chapters (25 – Science and research, 26 – Education and culture, 30 – External relations) have been provisionally closed (Delegation of the European Union to Montenegro 2018a).

Second, since 2012, and in line with opening the accession negotiation with Montenegro, new pre-conditions for the WBs have been specified in terms of dynamics of opening negotiation chapters: accession negotiation starts with Chapters 23 and 24, and they have become the very heart of the accession process by focusing on the rule of law requirements together with the constant evaluation and monitoring during the entire accession process. Following provisions within the new approach from 2012, the accession negotiation operates

27 on the principle “that nothing is agreed until everything is agreed”, which means that provisional closure of individual chapters and agreements shall be finalized at the end of the accession negotiation process. In addition, the EU has set interim benchmarks for the first time by opening accession negotiations with Montenegro (Đurović 2012: 326; Đurović 2016: 69; European Commission 2014b: 12).

Third, there is unanimous consensus of all political parties towards the EU membership. As a result of the achieved consensus among the parties on the issue of EU accession, the EU influence on Montenegrin parties increased between the two electoral cycles (2009 and 2012). Correspondingly, the EU impact on relevant parties (KECG, SNP, PZP, DF and BS)8 was observable in the increased prominence of the EU policies in their manifestos, which testifies about the certain visibility of the EU transformative power on domestic changes (Vučković 2016a: 50-51).

Fourth, after an eight year of break of NATO enlargement policy, Montenegro has become the 29th member state of the Alliance in 2017, which means that the country has fulfilled necessary requirements within the rule of law reforms, equally demanding and complex process as the case of the EU enlargement policy is. Arguably, Montenegro has become more democratically mature through the NATO enlargement policy, indicating that the state has reached an advanced level of democratic stabilization, particularly in the field of strengthening democratic institutions which is the main precondition of building effective and functional consolidated democracy (Vučković et al. 2016b: 623).

Fifth, within the SAP conditionality framework, Montenegro has sought to play a constructive role in improving regional cooperation and maintaining good neighbourly relations in the region through its active participation in various regional initiatives (Berlin Process, Western Balkans Six, Central European Initiative, Central European Free Trade Agreement, Migration, Asylum, Adriatic and Ionian Initiative, Centre for Security Cooperation, South-East European Cooperation Process, Regional Cooperation Council, US- Adriatic Charter, RECOM, Igman Initiative etc.) by contributing to stability, reconciliation,

8 A list of analysed parties in Montenegro: Koalicija Evropska Crna Gora – KECG (Coalition European Montenegro) comprises of Democratic Party of Socialist (DPS), Social Democratic Party (SDP) and Liberal Party (LP); Socijalistička narodna partija – SNP (Socialist People’s Party); Demokratski front – DF (Democratic Front) consist of New Serb Democracy (NOVA), Movement for Changes (PzP), Democratic Party of Unity and a group of citizens; and Bošnjačka stranka – BS (Bosniak Party). For more details: Vučković 2016a.

28 and a climate conducive to addressing open bilateral issues and legacies of the past (European Commission 2012c: 16-17; 2013b: 10-12; 2014b: 21-22; 2015b: 21-22; 2016b: 21-22).

Sixth, although the country has become the youngest NATO member and obtained the status of leader in the EU enlargement process, the country still suffers from weak governance and widely perceived corruption that is also seen in the entire Western Balkans region. The existence of non-consolidated democracy in Montenegro has opened opportunities of political elite to use decision-making process for private purposes, and to misuse government prerogatives in order to ensure that the adopted political decisions are largely in favor of clientelistic interest. The wide spread corruption substantially undermines the state capacity, weaken its legitimacy consequently resulting in ultimately weak states (Elbasani 2013: 12-13; Kmezić 2017: 57; BiEPAG 2015: 6).

Seventh, Montenegrin society is a deeply divided society. The issues of statehood, nationhood and national identity have continued to play a significant role in the political life of Montenegro, whereas different interpretations of these categories between Montenegrins and Serbs consequently affect the internal political dynamics and processes within the society and development of the political situation. By the same token, several policies adopted by the DPS government in the post-referendum period which aimed at the reconstruction of Montenegrin national identity (recognition of the Montenegrin language, adoption of new state symbols and detachment of the government elite from the Serbian Orthodox Church), have to a large extent contributed to the Serbian minority’s non-acceptance of Montenegro as their homeland (Džankic 2014a: 356, 362-371; Morrison 2009: 223). Furthermore, the decision of the Government to recognize Kosovo as an independent state in 2008 as well as the proclaimed activities towards the NATO membership have also been perceived by the Serb parties as clear examples of anti-Serb policy. Namely, the anti-NATO policy of the Serb parties has significant public support with the 37.3 % of the population against Montenegro’s membership in the Alliance and 36.6% for it (CEDEM Survey 2015: 5). Unlike the Serb minority, the Montenegrin Bosniak-Muslim and Albanian communities, respectively, see Montenegro as their homeland mainly due to the adopted provisions in the Constitution of Montenegro which define the state as a civic rather than a national state (Džankic 2014a: 357; Morrison 2009: 224; Vučković 2016a: 41).

And finally, as is the case with the region, Montenegro is strongly subjected to the influence of “stabilitocracy”, i.e., weak democracy with autocratically-minded leaders who

29 govern through informal patronage networks and claim to provide pro-Western stability in the region (e.g., Democratic Party of Socialists as the ruling party has used NATO membership to paortray itself as an indispensable “factor of stability”) (BiEPAG 2017: 7). Montenegro is the only post-communist country with one political party, – Democratic Party of Socialists (DPS), ruling in continuity since the introduction of the multiparty system (Vuković 2013: 73; Morrison 2009: 230; Džankić 2014b: 44). Besides his political capabilities to maintain and consolidate power in Montenegro, the former Prime Minister and the President of the ruling DPS, Milo Đukanović has created a “tight-knit clan” of his closely related allies who possess strong political and economic power and deeply affect domestic internal political processes in the society (Morrison 2009: 229). The existence of a democratic system obscures the real situation in the country, where the ruling DPS continuously controls many aspects of society, particularly in the domain of pressure on voters employed in the state and public institutions, as well as a sporadic pressure of DPS party activists on the neutral voters and those with a poor financial status. Furthermore, clientelism and patronism play a significant role in the DPS strategy of remaining in power for many years (Ibid. 2009: 229). By the same token, Mochtàk (2015:111) has done an analysis of parliamentary and presidential elections in Montenegro from 1990 to 2013 and argued that the escalation of electoral violence continuously occurs, detecting the DPS as a “potential incendiary factor igniting political conflict”. Similarly, Džankić (2014b: 44) holds the view that the citizenship policy in Montenegro as an “image of the nation” and an “image of politics” was an important mechanism which enabled the survival of the DPS rule: “by embedding the ìmage of the nation` in the citizenship legislation, the ruling Montenegrin elite reinforced their political agenda. By entrenching the ìmage of politics` in the citizenship law, they managed to produce conditions favouring their electoral victories and thus enabling the party’s institutional dominance” (Vučković 2016a: 41-42).

Results of already applied analytical framework, as well as empirical findings, shall be beneficial for both case study of Montenegro and also for the entire Western Balkans region. Primarily, the research shall provide an explanation of special importance on whether Montenegro has substantially deserved the status of the regional frontrunner due to its undisputable commitment to the EU integration reform processes, or whether visible accession advancement of this small Adriatic country in the enlargement process has been the result of permissiveness of the EU towards Montenegro in the light of the rest of the region significantly lagging behind in the accession process. In addition, in line with the new conditional enlargement approach from 2012, the analysis of the case study of Montenegro shall provide

30 scientific insights in regard to the advancement of the EU enlargement conditionality, reward- threat balance (positive-negative incentives), and improved monitoring mechanism which shall be identically applied to rest of the WBs due to regional particularities. Finally, following the case of Montenegro and the rest of the WBs, the paper shall also address the question whether and why the EU prioritizes the support of the internal political stability, i.e. “stabilitocracy” instead of credible and sustainable adoption of EU rules and norms, by taking into account that in most regional countries there are strong bonds between domestic ruling elites (autocracies) and post-communist legacy in opposing effective implementation of political membership requirements.

In accordance with the aforementioned, the process of Europeanization of Montenegro through the EU impact on governmental structural changes (policies and institutions) is understood as the subject of this research.

2.3 Literature Review

The relevance of theorizing over the term “Europeanization” became widespread in the late ‘90s among scholars within the field of political science. The number of events that influenced development of the EU, namely institutional and legislative reforms, strengthening of supra-national competences, establishment of common European currency – the euro, etc., opened the opportunity to extend this concept in much wider and deeper sense. Broadly speaking, the Europeanization refers to the EU impact on domestic changes in terms of policies, institutions, politics, actors, and processes.

The early literature on Europeanization was particularly focused on the EU influence on domestic structural alterations in member states. In particular, ways and conditions under which the Union had transformed its member states in terms of national politics and domestic political systems became the most significant characteristic of studies within the European Studies scholarship, especially when it came to discussions among political scientists of that time. Hence, within the area of Europeanization of member states, scholars dedicated most of their attention to the issue of impact of the EU on domestic politics, endeavouring to ascertain the degree of implementation of European policies on the domestic political level.

However, although the term Europeanization was very popular during the 1990s, it is very important to highlight that there was no unique definition of this concept that would satisfy

31 quite broad scientific areas. In this sense, Robert Ladrech (1994: 69) defined Europeanization as “an incremental process of re-orienting the direction and shape of politics to the degree that EC political and economic dynamics become part of the organizational logic of national politics and policy making.” According to Ladrech, the concept of Europeanization refers primarily to understanding the whole process of domestic environmental changes, especially politics, policies, and institutions under the significant influence of the EU policies and strategies.

In addition, Olsen’s definition of Europeanization gave an important scientific contribution to the development of this area, whereby he emphasized the necessity “to separate different phenomena referred by the terms, that is, what is changing.” According to Olson, the EU induces changes in member states in five different aspects, namely: 1) changes in external boundaries: this involves the territorial reach of a system of governance and the degree to which Europe as a continent becomes a single political space; 2) developing institutions at the European level: this signifies centre-building with a collective action capacity, providing some degree of co-ordination and coherence; 3) central penetration of national systems of governance: Europeanization here involves the division of responsibilities and powers between different levels of governance; 4) exporting forms of political organization: Europeanization as exporting forms of political organization and governance that are typical and distinct for Europe beyond European territory focuses on relations with non-European actors and institutions and how Europe finds its place in a larger world order; and, 5) political unification project: the degree to which Europe is becoming a more unified and stronger political entity in relation to both territorial space, centre-building, domestic adaptation, and how European development impacts and is impacted by systems of governance and events outside the European continent (Olsen 2002: 923-924).

Last but not the least, concerning this early scholarship, Radaelli provides a very useful and significant definition of Europeanization, at the same time opening space for further scientific and academic discussions among scholars. According to this author, the concept of Europeanization refers to “process of (a) construction (b) diffusion and (c) institutionalization of formal and informal rules, procedures, policy paradigms, style, `ways of doing things` and shared beliefs and norms which are first defined and consolidated in the making of the EU decisions and then incorporated in the logic of domestic discourse, identities, political structures and public policies” (Radaelli 2000: 4). Notably, Radaelli emphasizes the importance of alteration within the logic of political behaviour. Furthermore, this scholar outlines necessity of the EU impact on domestic changes within member states by stating that “the latter changes

32 through the process leading to the institutionalisation in the political system (at the national and or sub-national levels) of discourses, cognitive maps, normative frameworks and styles coming from the EU” (Radaelli 2000: 4).

The common feature of all scholars that originate from the first wave of Europeanization is based on the theoretical assumption that process of Europeanization is primarily a “top-down approach.” In particular, these authors stressed the importance of detecting patterns of impact of European institutions, processes, legislation, and strategies (sub- national level) on domestic political system, politics, and polities (Carter et al. 2007: 4). However, it might be reasonable to claim that many scholars also used the “bottom-up” approach in order to analyse the process of Europeanization, respectively the EU impact on governmental structural changes. According to this view, the starting theoretical premise is based on the assumption that the process of Europeanization does not solely depend on the EU level and its prerogatives. Rather, it is a complex and comprehensive process in which domestic changes also depend on domestic actors.

Eastern enlargement literature brought novelties within the theoretical discussions on Europeanization. The subject of theorizing slightly moved from the EU impact on member states to candidate countries coming from Central and Eastern Europe, Baltics, and Mediterranean by focusing on fulfilment of the Copenhagen membership conditions (1993) as a result of new EU enlargement strategy. In particular, the second wave scholars demonstrated particular interest toward analysis of asymmetrical EU impact on domestic changes in non- member states by observing and explaining overall institutional and policy changes in post- communist countries. Undoubtedly, most of these scholars outlined positive outcomes of Europeanization of these countries by relying on the logic of appropriateness as a course of action for the EU standards adoption, which means that (mainly) post-communist countries were persuaded by the EU on legitimacy of the EU rules and processes (Schimmelfennig and Sedelmeier 2005; Sedelmeier 2011; Vachudova 2005; Grabe 2006).

Evidently, large number of academics shared the same opinion that Europeanization of Central and Eastern Europe brought positive effects on overall transformation of the countries in question. They claimed that the EU imposed positive reinforcing effects on domestic institutional and policy changes resulting in effective adoption of the acquis and alignment with the EU policies. In this respect, Grabbe (2006: 42-44) claimed that the EU made a wide and deep influence in the CEE due to existence of four factors “that pushed the applicant country

33 towards greater convergence within particularly policy models that had occurred within the existing EU.” According to this author, these factors are: 1) speed of adjustment, i.e., the Union was able to push policy reforms faster because of priority accorded to accession by the CCE governments and of institutional lacunae resulting from the communist period; 2) openness of the CEE to the EU influence owing to the process of post-communist transformation and the weakness of state administration; 3) breadth of the EU agenda in the CEE since the countries had no possibility of opting-out from certain parts of the given agenda; 4) the EU agenda in the CEE was wider compared to the then member states due to the Copenhagen membership conditions established in 1993 for future EU candidates.9 However, unlike those scholars who emphasized positive assessment of Europeanization in the Eastern enlargement case, there is a group of authors who have had dissenting opinion regarding effectiveness of the EU impact on domestic governance changes. In particular, scholars such as Pridham and Elbasani argued that the Union had imposed limited pressure on domestic changes in order for the given states to comply with requirements, or, said in another way, it introduced rather limited transformative power on overall governmental alterations in the CEE (Pridham 2005; Elbasani 2013). In this regard, Pridham (2005: 142) claimed that the EU influence had been fairly decisive in spurring aceeding states into action, but yet that there were some cases illustrating limitations of the EU role in certain CEE countries, particularly so in the Union’s inability to bring changes in certain institutional and policy areas, such as children protection or fight against corruption.

It might be reasonable to claim than Europeanization as a scientific discipline has significantly expanded its scope and range of theoretical knowledge for a short period of time by providing different views on the impact of the EU transformative power on member states and candidate countries for the EU membership. By the same token, tendency of development of this scientific discipline has continued after the accession of the CEE into EU. Consequently, Europeanization as theoretical concept has spread in its field of research towards the Western Balkans, respectively the only area not part of the EU but with being provided with some sort of the membership perspective.

Quite recent literature on Europeanization shows serious concerns over the future of the Western Balkans due to limited impact on domestic policies and institutions and points out that Europeanization of the Western Balkan states has become essentially shallow (Börzel 2011; Börzel and Risse 2012; Elbasani 2013; Freyburg and Richter 2010; Keil 2013;

9 Taking obligation from the membership, development of functional market economy, and the capacity to cope with competitive pressure and market forces within the Union.

Noutcheva 2009; Noutcheva and Aydin-Düzgit 2011; Bieber 2011). This literature has defined Europeanization of candidate countries as EU politically-driven process in which EU policy- making processes, institutions, and legal systems impact domestic rules and laws, policies, institutional mechanisms, and actor’s behaviour in non-EU member states (Kmezić 2017: 5).

In the case of Europeanization of the Western Balkans scholars have shown a limited interested toward investigating influence of the EU on domestic structural changes (top-down approach) and have additionally failed to examine role of domestic factors in respect, along with a scope and range of conditions of the Western Balkans domestic capacities in order to align with the EU conditions (bottom-up approach). More precisely, scholars have devoted little attention to Europeanization of, for instance, Montenegro as the EU candidate country by analysing the process of Europeanization of Montenegro through the EU impact on domestic political changes (policies, politics, institutions, processes, actors, etc.) within the Union’s enlargement policy.

In line with already provided theoretical definition on Europeanization of candidate countries, Montenegro has made a quick progress in this regard for a relatively short time immediately after gaining its independence largely as a result of two factors: status of the country, as in not being contested either internally or externally, and unanimous consensus of all political parties on the EU membership (Keil 2013: 350). Still, Montenegro’s progress towards the EU membership has not depended on capacity of domestic actors to induce governmental structural changes. Rather, it is a completely driven project in which the EU has positioned itself as a major actor of domestic change (Keil and Arkan et. al 2015: 83).

By using the external incentive models as a tool of transformative power, the EU has affected the process of democratization and consolidation of statehood in Montenegro, and slightly empowered institutional capacities in order to comply with the EU norms and rules. Correspondingly, the EU transformative power has already been seen in two instances regarding Montenegro: visa liberalization process, so far the strongest conditionality mechanism towards the WBs, and recommendations stipulated in the EU’s Opinion of Montenegro’s preparedness for the EU membership (Keil and Arkan et al. 2015: 96; Radeljić et al. 2013: 125). Montenegrin political elite have very often used EU initiatives (policies and institutions) to ensure survival of current governing elites, to promote their own party programmes, and to satisfy voters in order to get enough votes to remain in power. The extent to which the EU and domestic initiatives have influenced each other largely depends on the

35 prominence of certain EU policies (judicial reform, rule of law, corruption and organized crime, etc.) for voters. In the absence of public interest in certain EU policies, norms, and rules, the EU is expected to face a limited impact on domestic institutional and policy change in Montenegro (Börzel and Risse 2012: 200; Keil and Arkan et al. 2015: 9).

In sum, based on already provided theoretical argumentations over Europeanization of the Western Balkan states, it may be said that they all share common ground in the EU having imposed limited impact on domestic institutional and policy changes, as is the case of Montenegro as well. According to academic research so far, the EU’s limited transformative power in the Western Balkans is primarily the result of the Union’s lack of experience in state- building, absence of clear criteria within the acquis communautaire, enlargement fatigue, domestic statehood issues, and other related problems.

3. Theoretical Background

The new institutionalism (March and Olsen, George Tsebelis, Geoffrey Garrett, Mark Polak etc.) recognizes the EU as a system of counterbalance institutions in which rational actors behave strategically aiming to achieve desired results. The EU as an institutional project in not a neutral area where borders of political power are intersected, but it is a defined institutional form that has permanent and connected sets of rules (formal and informal) that defines behavior, creates standards, limits countries, and shapes expectations. Hence, following the main theoretical argumentations it might be grounded to claim that the institutional theory is applicable to the Europeanization of the candidate countries.

The theoretical debate among the scholars in the field of Europeanization of the candidate states is mostly related to the framework of the neo-institutional theory, especially a theoretical discussion between the rational and constructivist (or sociological) institutionalism. Whereas rational institutionalism explains alignment by use of positive and negative incentives which constrain or empower states and domestic actors by allocating different costs, constructivists highlight external socialization in which domestic actors change rules, norms, policies, and behavior as a result of imitation or persuasion (Schimmelfennig and Sedelmeier 2005: 6). Obviously, these theoretical approaches significantly differ in terms of use of different mechanisms for EU norms adoption, i.e., the EU conditionality (for rationalism) or persuasion and socialisation strategies (for constructivism). It is in this respect

36 equally important to note the diversity in the context of logic of actions for alignment with EU policies, i.e. logic of consequences (for rationalism) and logic of appropriateness (for constructivism) (Sedelmeier 2011: 11; Schimmelfennig and Sedelmeier 2005: 9).

Thus, for the purpose of assessing effectiveness of the EU domestic influence in Montenegro, it is recommended that its theoretical starting points be related to the theory of rational institutionalism. This theory argues that political institution such as the EU itself are systems of rules and inducements within which individuals attempt to maximize their utilities (Weingast 1996). In other words, rational institutionalists claim that institution such as the EU itself is purposeful human construction design to solve collective action problems (March and Stoker et. al 2010: 66). According to rational choice institutionalism, the political institutions influence behavior by affecting the context in which individuals select strategies for the pursuit of their preferences, and these institutions provide the information about the others’ likely future behavior and about the incentives (and disincentives) attached to different courses of action (Ostrom 1997). However, although rational choice institutionalism is the most suitable theoretical framework for the study of Europeanization of Montenegro, it shall be useful to present both theoretical perspectives: namely, rational institutionalism, based on the logic of consequences, and constructivist (or sociological) institutionalism, based on the logic of appropriateness due to interdependence and reciprocity of their theoretical concepts.

Explanatory Models and Mechanisms of Rule Adoption

Schimmelfennig and Sedelmeier (2005: 8-10) developed three main explanatory models that determine different mechanism of Europeanization and the conditions under which the target state complies with the EU demands. According to scholars, these models differ on two key dimensions. First, the process of Europeanization of potential/candidate country is either EU driven-process (where the EU induce pressure over the adoption of rules and norms), or domestically-driven process (where the non-member state conducts reform activities). Second, the scholars defined a different logic of action of EU rules adoption by making a clear distinction between “logic of consequences” and “logic of appropriateness”. The former case presumes strategic rational actors which aim to maximize their own power and welfare, while the latter foreseen identification with the EU identity, values and norms.

Table 2. Alternative mechanisms of Europeanization

Principle actor in rule Logic of rule adoption adoption process Logic of consequences Logic of appropriateness EU-driven External incentives model Social learning model

CEEC-driven Lesson-drawing model Lesson-drawing model

Source: Schimmelfennig and Sedelmeier 2005: 8

The combination of above-mentioned logics creates different mechanisms of Europeanization or different explanatory models. In this respect, the scholars distinguished three different models of Europeanization of non-EU member states: external incentives model, social learning model, and lesson-drawing model. The external incentives model is based on the logic of consequences as a course of action for EU rules adoption and uses the EU conditionality as the main mechanism for inducing domestic changes followed by the strategy of reward-threat balance. The social learning model is based on the logic of appropriateness and assumes the state’s identification with the EU and its values by being persuaded of the legitimacy of the EU demands and of EU process through which the EU formulates conditions and promotes rules as such. And finally, the lesson drawing model presumes creation and adoption of the rules and norms by the non-member state consequently being reluctant to follow the EU initiatives.

3.1 Rationalist Institutionalism – Logic of Consequences

According to Schimmelfennig and Sedelmeier’ theory (2005: 10-18) the external incentive model as a rationalist bargaining model uses the logic of consequences within the course of action for the EU standards adoption, emphasizing the role of strategic, instrumentally rational actors who endeavor to maximize their own power and prosperity. According to the external incentive model, the EU established a certain set of rules and norms which the candidate country needs to adopt in order to receive a financial, technical, or institutional reward (or punishment) as a proof of its (non)advancement in the accession process. In this regard, the Union offers to non-member state two types of rewards if it aligns with the EU conditions: assistance and institutional ties. The Instruments for Pre-accession Assistance (IPA) remains most advanced assistance mechanism for the Western Balkans.10 In

10 For Central European countries was PHARE.

38 addition, the Union introduced wide range of institutional ties spreading from trade and cooperation agreements, association agreements (Europe Agreement and Stabilization and Association Agreement) to full membership in the EU. In any case, the external incentives model is employable to the case of Montenegro, and also to entire region, where the target accession country is to adopt the EU rules and norms if the benefits of received rewards on behalf of the EU exceed domestic adoption costs (Schimmelfennig and Sedelmeier 2011: 663- 667; Börzel and Risse 2012: 195; Sedelmeier 2011: 12-14).

The EU conditionality is a central principle for examining the EU impact on domestic changes by introducing a strategy of reward-threat balance. This particularly means that the EU grants a certain reward in the form of the advancement in the accession process, as well as financial and technical assistance if the accession country complies with the EU requirements, but also introduces a specific threat in the form of sanctioning non-compliance by delaying the receiving accession advancement or financial reward. The model particularly emphasizes the fact that the Union does not induce the mechanisms of reinforcement by punishment due to non-fulfilment of the EU requirements. Rather, the target country is left behind in the integration process and simply denied the benefits from establishing closer assistance and institutional ties with the EU. Therefore, the compliance with the EU conditions remains solely target country obligation, while the Union mostly plays a role of a promotor of the integration process and remains the monitor of the country’s advance in the accession phase.

According to the theory of rational institutionalism, at the beginning of the bargaining process the target accession country is in status quo. The EU conditional process upsets continuous “domestic equilibrium” by imposing EU pressure on country in order to comply with EU conditions. As result, the conditional policy works in two ways: 1) through intergovernmental bargaining process which directly affect the target accession country; 2) or, through differential empowerment of domestic actors. The intergovernmental bargaining process remains profoundly “top-down” approach of adoption of acquis and alignment with EU policy, while differential empowerment process is more oriented towards “bottom-up” EU rules adoption. In any case, the effective implementation and enforcement of the EU standards solely depends on domestic actor’s decision.

Based on the provided discussion, the general provision of the external incentives model under the strategy of reinforcing by reward is: “A government adopts EU rules if the benefits of the EU rewards exceed domestic adoption costs.”

However, effectiveness of conditionality greatly depends on a number of other external and internal factors. In particular, the cost-benefit calculations of domestic actors largely depend on a certain set of other merit-based facilitating international factors, namely determinacy of EU conditions, size and speed of rewards, credibility of threat and promises, and role of veto players and size of adoption costs.

The external incentives model indicates that the target accession country shall not align with the EU requirements if the Union does not determinate them as conditions for rewards. Furthermore, determinacy of the EU conditions enhances the likelihood of the EU rules adoption by the non-member state. In this regard, determinacy refers both to the clarity and formality of a rule. According to scholars’ theory, the clarity of the EU criteria is important for two reasons. Firstly, it contains an informational value. By defining the conditions, the target accession country knows exactly what needs to be done in order to get a reward. Secondly, its strengthen the credibility of EU conditionality. On one hand, it sends a clear message to non- member state that it shall not be the policy of permissiveness in the accession process, while on the other hand, it obliges EU to provide a reward if the enlargement state effectively complies with EU requirements. In sum, the determinacy hypothesis is: “The likelihood of rule adoption increases, if rules are set as conditions for rewards and the more determinate they are.”

A second set of factors under the strategy of reinforcement by reward is the size and the speed of the rewards. Arguably, the credible membership perspective is more powerful mechanism for domestic alignment than the other forms of institutional rewards such as association or assistance. On the other hand, the longer temporary distance to receive the reward, the less likely is to expect that the non-member state shall adoption EU rules. Moreover, previous enlargement waves had shown that the EU impact on domestic changes is most effective just before the entry of these countries into EU. In sum, reward hypothesis is: “The likely of rule adoption increases with the size and speed of rewards.”

Another source of discussion within the external explanatory model is credibility of conditionality. This means that the Union contains credibility to impose threats and to withhold the reward if the target government does not align with EU conditions, and to introduce advancement or financial reward if the country fulfils EU requirements. According to scholars’ argumentation, the credibility of conditionality depends on two factors. Primarily, inability to endanger EU’s capabilities and costs. The EU must contain the capability to withhold the

40 reward at no or little cost to itself, and it must be less interested in providing a reward that a non-member state in receiving it (power asymmetry). Secondary, the credibility primarily depends on consistency of EU conditional policy. If the EU is perceived as an actor which subordinate conditionality to other political, economic, or strategic reasons than the target country might hope to receive a reward without addressing conditions. Thus, credibility hypothesis is: “The likelihood of rule adoption increases with the credibility of conditional threats and promises.”

And finally, the external incentives model presumes that the EU acquis alignment requites domestic adoption costs. In this sense, adoption of the new EU rules and norms may produce opportunity costs, welfare, and power losses for certain number of public and private actors. As result, the change of the current legal system may be perceived as a negative. Given the fact that effective implementation and enforcement of adopted rules primarily depends on domestic actors, the effectiveness of the EU conditional policy then relies on government will to comply with the EU conditions and influence of other veto players. Following the Tsebelis theory of veto players, they are public and private actors whose support is needed in order to change domestic status quo. According to theory, the more veto players performance in society, the less likely is to expect the status quo is going to changes. In sum, adoption cost hypothesis is: “The likelihood of rule adoption decreases with the number of veto players incurring net adoption costs (opportunity costs, welfare, and power losses) from compliance.”

In addition, the literature on Europeanization identifies a set of domestic factors which facilitate costs of adopting rules for national governments, and they stretch from strength of EU domestic allies, over presence of liberal democratic government, pro-EU parliamentary parties, constrains of historical legacies, low number of veto players, civil society organizations, all the way to capable administrative capacities, and similar (Elbasani 2013: 9; Sedelmeier 2011: 14-15). Furthermore, at an internal level, there are a number of domestic factors which significantly mitigate functional introduction of the EU transformative power on domestic changes, such as the impact of historical legacies, weak stateness, strong role of authoritarian leaders, widespread clientelientelism, veto players, and the like (Elbasani 2013: 11-12; Börzel 2011: 8-9; BiEPAG 2017: 6).

3.2 Constructivist/Sociological Institutionalism – Logic of Appropriateness

Following the Schimmelfennig and Sedelmeier’ theory (2005: 18-20), the social learning model is a social constructivist model based on the logic of appropriateness. In contrast to external incentive models, the logic of appropriateness presumes the identification of the candidate country with the EU identity and its values and norms, and it is persuaded by the EU towards recognizing legitimacy and usefulness of adoption of the EU rules and norms. Whether a target country adopts EU rules primarily depends on the level to which the government align with EU requirements and consider it as appropriate in the context of collective identity, values and rules. This model is/was particularly applicable to the process of accession of the CEE countries but also to a certain extent to WBs, and it means that the target candidate country adopts the Union rules and norms if it is persuaded by the appropriateness of the Union legislation (Schimmelfennig and Sedelmeier 2011: 667-668; Sedelmeier 2011: 15).

Following the theoretical discussion, the general provision of the social learning model is: “A government adopt EU rules if it is persuaded of the appropriateness of EU rules.”

Based on the logic of appropriateness, the EU may persuade candidate country to align with the EU requirements chiefly through persuasion and socialization of the target government and also domestic social actors, groups, and organizations (Schimmelfennig and Sedelmeier 2005: 9). Similar to the previous model, within the social learning model there is a number of external factors affecting the domestic process of persuasion and socialization, namely legitimacy of EU conditions, legitimacy of the EU process through which EU formulates demands and promotes rules as such, as well as the domestic identification with the EU and domestic rule resonance.

Whether the target candidate country identifies with the Union’s demands by being persuaded of the usefulness of EU norms primarily depends on the quality of established rules and the process through which they were established and transferred to non-member state. The scholars formulated a certain set of factors which need to be fulfilled if the enlargement country wants to be persuaded by the legitimacy of EU rules and process. Firstly, as it was the case with rational institutionalism, the EU must determine the conditions for the given policy area. Secondly, the rule’s capacity to impose the changes is another factor. And finally, the legitimacy of the decision-making process remains an important factor for the EU standards adoption. The creation of the specific policy for the region and awareness of the existence of

42 special EU rules substantially increased the legitimacy of the EU rules and procedures, and therefore the likelihood of their adoption by the candidate country. In sum, the legitimate hypothesis is: “The likelihood of rule adoption increases as the legitimacy of rules increaces.”

In addition, in the terms of domestic facilitating factors, these factors include active participation of the target country in the process of setting conditions and making rules, but since this requirement is not applicable to the candidate country in the accession process, facilitating mechanisms should be oriented towards soft tactics rather than strong pressure from the Union. At the domestic level, certain sets of domestic factors influence a process of alignment with EU requirements, and they stretch from domestic identification with the Union to positive normative resonance with domestic rules (Sedelmeier 2011: 15).

The state’s identification with the EU’s identity, values, and norms has remained one of the most important domestic facilitating factors in the process of adoption of EU rules. According to the social learning model, the likelihood of rule adoption increases with the identification of the candidate country with the EU that has established the rules of the ‘game.’ Thus, the basis identity hypothesis is: “The likelihood of rule adoption increases with the identification of the target government and society with the community that has established the rule.”

And finally, the social learning model emphasizes a positive normative resonance with domestic rules as the last factor. Under the term “positive normative resonance,” the scholars imply domestic factors that facilitate or inhibit persuasion. The state’s possibility to adopt and comply with EU rules increases if domestic rules are absent or they became delegated as a result of the crisis. Also, it increases if the EU rules correspond with domestic perception as good policies. Hence, the resonance hypothesis is: “The likely of rule adoption increases with domestic resonance.

Table 3. Theoretical framework: Europeanization of candidate and new member states

Rational institutionalism Sociological/constructivist institutionalism

EU strategy Conditionality – Western Balkans Socialization – CCE

International facilitating - clarity of EU conditions - legitimacy of EU conditions factors - credibility of threat and promises - legitimacy of the process - size and speed of rewards through which the EU - power asymmetry formulates demands and - size of adoption costs promotes rules

Domestic facilitating - strength of EU domestic allies - identification with the EU factors - liberal democratic government - positive normative resonance - pro-EU parties with domestic rules - constrains of historical legacies - low number of veto players - administrative capacities - civil society organizations

Domestic mitigating - historical legacies factors - weak statenes - authoritarian leaders - clientelientelism - corruption - veto players

(Sources: Sedelmeier 2011: 13; domestic mitigating factors - Author’s own elaboration)

3.3 Aim of Research

The aim of this research is related to the issue of examining the effectiveness of the EU influence on domestic infrastructural changes in Montenegro. This particularly means to what extent and how the EU external initiatives have impacted domestic institutional and policy changes, and under what conditions has the adoption of EU rules and norms resulted with domestic structural changes.

Main objectives of this research are chiefly empirical. These objectives are vested in description, analysis, and explanation of the EU impact on domestic changes (institutions and policies) in Montenegro. Therefore, the aim of the study is to provide answers in regards to the role and significance of the EU transformative power resulting in domestic changes in Montenegro, as well as to clarify scope and range of domestic factors to effectively enforce the EU requirements following the association and accession criteria.

3.4 Main Research Question

The EU external incentive aims to achieve overall structural changes in Montenegro while keeping the criteria of positive experiences of enlargement and adding new criteria, conditions, and principles as result of the negative ones. However, it might be reasonable to assert that due to cost-benefit calculations within the domestic actors, the EU conditional policy may cause the unwillingness of Montenegrin political elites to effectively implement requested political requirements, consequently providing conditions for an outcome of unfinished EU impact on domestic infrastructural changes. Although Montenegro has chosen the path of stabilization and association and accession negotiation with the EU as the central pillar of its development strategy, further process will depend solely on the Union itself to continue to influence strengthening of Montenegrin transformation (institutions, policies, politics, processes, actors etc.) by promising credible EU membership perspective.

4. Methodological Framework

4.1 Research Outset

4.1.1 Specific Research Questions

The below-presented subset of specific research questions reflects an essence of the research focus. More specifically, defined subset of particular research questions is strictly tied to the main research question seeking to provide scientific insights with reference to the effectiveness of the EU impact on institutional and policy preferences in Montenegro. In addition, the significance of established subset of specific research questions lies in their close relation to below presented methodological framework of research, thus consequently providing guidelines for concrete operationalization of the research.

In accordance with the foregoing explanations and following the main conceptual principles of the theoretical framework of rational institutionalism, a subset of specific research questions (SRQ) shall address the research issues:

1. What EU demands have been introduced during the accession process? 2. Which EU incentives have been given? 3. Which domestic institutional and policy reforms have been conducted so far, and how have these reforms evolved across different stages of accession process? 4. Are there any veto players who have opposed fulfilment of the EU conditions? If so, how has this particular issue affected the EU rules adoption, in what extent, and how and why have these actors actually stood opposed to the given reforms? 5. What are motivations of domestic ruling elites for the EU rules adoption, whether and why the process of Europeanization has become the EU-driven rather than domestically-driven agenda followed by different logic of consequence versus logic of appropriateness?

4.1.2 Basic Approach of Data Collection

4.1.2.1 Case Study Method

In terms of operational methods of data collection, the study shall focus on Montenegro’s adoption of the EU rules and norms as a single case study by using the qualitative method aiming to gain scientific insights based on the main research question.

The single case study method undoubtedly has significant advantages in being applied to the case study of Montenegro. The qualitative single case study method seeks to explain outcomes of the main research question by focusing on certain elements of causality, such as growing EU conditional mechanisms, as well as capacity and capability of domestic factors to effectively induce structural changes (Marsh and Stoker et al. 2010: 255-256). Correspondingly, based on defined subset of specific research questions, advantage of this method is seen in its fundamental concept of this research as a whole, orientation to variety of sources and data, preservation of individuality, greater penetration, and also elasticity of research. By focusing only on the case study of Montenegro strictly in terms of content, space, and time, this method, may provide scientific insights about deepest layers of content and essence related to the process of institutionalization of EU requirements and its government effectiveness and democratic quality. In addition, the single case study method possesses characteristics of longitudinal research, and it entails a periodical repetition of research of the same case study at various stages of its development process which result in obtaining new data in regards to existence of domestic conditions undermining the EU transformative power (Milosavljević and Radoslavljević et al. 2006: 551-552; Gerring 2006: 43-60). Furthermore, as it is the case with other methods of research in political science, limitations of the single case study are visible in insufficient validity, unreliability, and unavailability for generalization. To sum it up, in order to obtain more qualitative insights with reference to domestic institutionalization of the EU norms and rules, consequently examining adopted EU and domestic legislations, as well as administrative and policy regulations, the case study method seems to be rather irreplaceable.

4.2 Research Focus

This research shall scrutinize three most prominent political membership conditions of the EU, such as: judicial reform, fight against the corruption, and strengthening regional cooperation and development of good neighborly relations, all of which are stipulated in the SAA and in the accession negotiation process. In addition, three defined membership criteria represent at the same time three dependent variables which have been used as the basis for defining the analytical framework of this research.

Following the adoption of Copenhagen criteria on the level of Lisbon Treaty, various EU enlargement documents have been accepted, i.e., ‘Agenda 2000: for stronger and wider Europe,’ Council`s improved policy of conditionality, SAP, Zagreb Declaration, ‘Thessaloniki Agenda for the Western Balkans: moving towards the European Integration,’ renewed consensus on enlargement, ‘A credible membership perspective for and enhanced EU engagement with the Western Balkans,’ etc. In addition, experience of the last waves of enlargement has also influenced the process of association and opening accession negotiations to become more complex and demanding for Montenegro and the rest of the WBs due to EU’s particular focus on political membership criteria (Lisbon Treaty 2007; Agenda 2000: 1997; Luxembourg 1997; SAP 1999; Zagreb Declaration 2000; Thessaloniki Agenda 2003; Renewed consensus on enlargement 2006c; A credible membership perspective for and enhanced EU engagement with the Western Balkans 2018). In addition, since 2012 and in line with opening accession negotiations with Montenegro, the Union has emphasized growing relevance of political criteria for the advancement of the accession process by introducing new chapters on rule of law and linking the progress of the membership talks to progress made under Chapter 23 and Chapter 24 (Gateva 2015: 145). Selected political criteria significantly reduce the possibility of the existence of research limitations due to EU’s focus on those political requirements which are of crucial importance for Montenegro’s membership in the bloc (European Commission 2013b, 2014b, 2015b, 2016b).

In addition, in order to assess effectiveness of institutionalization of the EU’s political and good governance requirements in Montenegro, this paper shall examine a certain number of specific dependent variables and/or dimensions within three political accession criteria which are coupled with the following specific research questions:

• Four variables within functioning of judicial system: 1) judicial independence; 2) judicial accountability; 3) judicial efficiency; 4) judicial effectiveness;11 – shall be addressed in SRQ 1, SRQ 2, and SRQ 3.

• Two variables within the fight against corruption: 1) prevention of corruption; 2) credible track record of investigation, prosecution, and final conviction of high-level corruption cases; – shall be tackled in SRQ 1, SRQ 2, and SRQ 3.

• Two variables within the strengthening regional cooperation and improvement of good neighborly relations: 1) contribution to peace and stability in the region by active participation in the regional initiatives; 2) reconciliation and climate conducive to addressing open bilateral issues and legacies of the past; – shall be argued in SRQ 1, SRQ 2, and SRQ 3 (European Commission 2016b: 9-18, 21-22).

From the methodological point of view, the author argues that the above-defined dependent variables and/or dimensions may provide the most appropriate explanations with reference to real effects of EU transformative power in Montenegro. In this regard, a number of other variables have not been taken into consideration.

Therefore, the Europeanization of Montenegro as a variable which needs to be examined from the EU enlargement policy point of view represents the process in which the target accession country adopts the EU standards aiming to change its own institutional and domestic preferences.

Correspondingly, the adoption of the EU rules and norms aiming to change domestic institutions and policies in Montenegro is defined as a dependent variable.

11 Under the term judicial independence, the study implies the establishment of new judiciary institutions such as Judicial and Prosecutorial Council whose members are appointed by judicial holders liberated from the political influence, appointment and dismissal of judges and prosecutors by the Councils, and introduction of transparent and merit-based recruitment system of judges and prosecutors. Under the term judicial accountability, this research determines accountability of judges and prosecutors in performance of judicial affairs and imposition of sanctions over other judicial holders if they violate basic ethical judicial postulates. Under the term judicial effectiveness, this thesis implies solving the issues related to a backlog in both civil and criminal cases, a high number of pending cases and excessively lengthy procedures etc., while under the term judicial efficiency, the study entails the capacity building process i.e. training of judges and prosecutors.

By focusing on the EU rule and norms adoption, this research is oriented towards the process of institutionalization of the EU requirements within the Montenegrin government structure, which particularly means domestic alignment with acquis communautaire, empowerment of domestic institutions through the EU rules and norms adoption, change of domestic political preferences, or actor`s behaviour based on compliance with membership criteria (Schimmelfenning and Sedelmeier 2005: 7-8).

Based on the main research question, the study aims to measure or classify the rule adoption in Montenegro in the following dimensions: 1) EU rule transfer, 2) likelihood of EU rules adoption, i.e., conditions under which state employs full or partial adoption, and 3) effective implementation and enforcement of rules rather than just formal adoption of the EU rules in the domestic legal system (this remains the key challenge in order to evaluate the EU transformative power on domestic infrastructure changes) (Schimmelfenning and Sedelmeier 2005: 7-8; Kmezić 2017: 5; Börzel and Risse 2012: 199). In addition, this research distinguishes three forms of rule adoption that correspondent to different levels of institutionalization of the EU rules: 1) verbal adoption which is characterized by domestic actors’ rhetorical endorsement of the EU rules and norms; 2) legal adoption that represents the process in which government attempts to pass legislation or establish formal institutions and procedures in line with the EU rules; and 3) substantive adoption that goes beyond these two adoptions and it refers to implementation as the process through which external norms are transposed, adhered to, and finally enforced at domestic level (Elbasani 2013: 14-15).

In the context of the spatial framework of research, the study shall be focused solely on Montenegro, a candidate country for the EU membership. In addition, in terms of the time frame of the research, the paper shall examine the outcomes of the adopted EU rules and norms in Montenegro from 2007 till 2017, i.e. from the period when country officially signed the SAA (2007) till the time when the country officially opened 26 negotiating chapters (2017). Furthermore, based on the following four distinct stages of accession process, pre-negotiation stage, negotiation stage, accession stage, and post-accession stage, the study shall focus only on the first and second integration stage. The pre-negotiation stage starts with the formal agreement of the European Council on the membership perspective of Montenegro as a candidate country and ends with the start of the accession negotiations. The start of accession negotiations makes up the second stage of the enlargement process (Gateva 2015: 27-28).

4.3 Operationalization of Research

4.3.1 Methods of Data Collection

Based on the research focus, the study shall employ a combination of various qualitative methods of data collection stretching from qualitative content analysis, text/document analysis, and other related methods. More specifically, in order to assess effectiveness of imposed reforms in the area of rule of law, and improvement of regional cooperation as such, this paper seeks to examine effective alterations of institutional and policy preferences in Montenegro as the EU candidate country by using the case study method, qualitative content analysis, and normative and empirical analysis.

4.3.1.1 Qualitative Content Analysis – Direct Content Analysis

In addition to the single case study method, this research shall use the qualitative content analysis as operational method of collecting data in order to obtain research findings based on the main research question.

More precisely, the study shall rely on Direct content analysis, a study design whose aim is to describe a phenomenon arising from the existing theory and prior research that is incomplete or would further benefit from further description: in this case, it is effectiveness of the EU impact on domestic structural changes. By using preconceived categories and thus not allowing categories and names for categories to flow from data, the goal of the Direct content analysis is to validate or extend conceptually a theoretical framework or theory. Thus, the existing theory or research can help the focus the research question in order to provide new insights to emerge (Hsieh and Shannon 2005: 1281).

Hence, the Direct content analysis, through the application of observation and the method of description, remains irreplaceable and indispensable, penetrating and reliable operative method of collecting and sorting data in the context of evolution of the EU enlargement conditionality towards Montenegro, and identification of main structural areas in which the EU intents to impose its adoption pressure (Milosavljević and Radoslavljević et al. 2006: 556-560; Burnham et al. 2008: 259-264). In particular, the thesis shall heavily use the method of description as a profound analytical framework which will acquaint the reader with basic information on the EU’s pressure in the areas of judiciary reform, fight against the

51 corruption, and strengthening regional cooperation, and domestic response through the institutional and policy changes. The substantial lack of literature following both top-town and bottom-up approaches in the given policy areas obliges author to inform the reader(s) about the development of relations between European Commission/European Union and Montenegro during the state’s integration phase.

The finding from the Direct content analysis offers either supporting on non-supporting evidence for a theory. This particularly means that newly obtained insights either offer a contradictory view of the phenomena or might refine, expend or enrich current theory or theoretical framework. Therefore, the main advantage of the direct content approach to content analysis is expending or supporting existing theory, which means that knowledge generated from content analysis is based on researcher’s unique analytical perspective and grounded in the actual data. Disadvantages of this methodological approach are seen in potential strong bias by the researcher’s approach. This can result in collecting evidence that are supportive rather than non-supportive of the existing theory (Hsieh and Shannon 2005: 1282-1283).

For the purpose of this research, direct content approach shall examine a wide range of sources of scientific knowledge such as primary sources:

• Key EU documents – Conclusions of the European Council, Stabilization and Association Agreement (SAA), European Partnership, Enlargement Strategies, Progress Reports, European Parliament Resolutions, Specific Report on Montenegro`s progress in the implementation of reforms, Commission Opinion on Montenegro`s application for membership of the EU, Explanatory Screening Reports Montenegro for Chapter 23 – Judiciary and Fundamental Right, and Chapter 24 – Justice, Freedom and Security;

Based on the main research question, the qualitative content analysis shall particularly address subset of specific research questions:

SRQ1 – What EU demands have been introduced during the accession process?

SRQ2 – Which EU incentives have been given?

4.3.1.2 Normative and Empirical Qualitative Analysis

Normative and empirical qualitative analysis remains an essence in gaining new scientific insights based on main research question having been defined. Apparently, assessing the degree of effectiveness of the EU impact on domestic structural changes in Montenegro by analysing adoption of acquis communautaire, policy alignment, and sustainability of reforms through credible track records of implementation, as well as scrutinizing role and significance of domestic formal and informal “gatekeeper” elites who possibly mitigate EU transformative power, greatly depends on quality of sources of scientific knowledge.

The advantage of this analysis is particularly visible in its ability to provide accurate and merit-based scientific insights in regards to the research focus. However, the disadvantage of the normative and empirical approach can be seen in researcher’s “selection bias” consequently prioritizing some sources over others for reasons of accessibility (Marsh and Stoker et al. 2010: 262).

Nevertheless, in order to gain new insights with reference to Europeanization of Montenegro, this paper shall be particularly oriented towards strict selection and analysis of primary sources followed by different methodological techniques, primarily methods of analysis and explanation. Correspondingly, normative and empirical methods shall take the form of analysis of primary sources established by EU institutions (European Council, European Commission and European Parliament etc.), and Montenegrin executive, parliamentary, and judicial branches, policy-making agencies.

More precisely, well-defined normative analysis remains a prerequisite of merit-based empirical analysis. This particularly means that normative analysis shall take a form of normative opinion as a value-based judgment, and this assertion will be confirmed or denied depending on the obtained empirical data. The empirical analysis shall be in position to prove or disprove the following normative claim through the examination of EU and domestic documents, consequently reducing the possibility of emergence of potential bias of data selection.

Structure of empirical and normative analysis is formulated as follows:

1. Normative opinion as a value-based judgment: Despite the fact that Montenegro has demonstrated visible progress in terms of formal institutional and policy change (adoption of EU rules and norms) aiming to strengthen democratic institutions and

enhance capacity-building, the main issue of effective implementation and its enforcement of acquis communautaire still remains controversial (Börzel 2011: 9).

2. Empirical analysis in the role of examiner of defined normative claim: In order to prove or deny the normative assertion, empirical analysis, followed by method of analysis and explanation, shall select and examine a wide range of key EU and domestic documents (primary sources) in the mixture of top-down and bottom-up approaches:

• Key EU documents: Conclusions of the European Council, SAA, European Partnership, Enlargement Strategies, Progress Reports, European Parliament Resolutions, Specific Report on Montenegro`s progress in the implementation of reforms, Commission Opinion on Montenegro`s application for membership of the EU, Explanatory Screening Reports Montenegro for Chapter 23 and Chapter 24;

• Key domestic (Montenegrin) documents: Constitution, domestic laws, reports on the fulfilment of obligations under SAA, action plans, reports, policy and strategy documents on the fulfilment of membership criteria, National Program for Integration (NPI) 2008-2012, declarations, information;

3. Outcomes of empirical analysis shall provide insights in reference to:

• Whether and in which subset of specific dependent variables within the three political membership conditions has the state not effectively complied with the EU requirements,

• Reasons for ruling elites refusing to functionally induce EU rules and norms,

• Changes to be introduced at the domestic level (agenda settings, policy choices, decision making process, independence of institutions, administrative capacities, and similar) in order for Montenegro to successfully complete the process of institutionalization of the Union rules and norms.

In reference to the main research question, normative and empirical analysis shall address these specific research questions:

SRQ3 – Which domestic institutional and policy reforms have been conducted so far, and how have these reforms evolved across different stages of accession process?

SRQ4 – Are there any veto players who have opposed fulfilment of the EU conditions? If so, how has this particular issue affected the EU rules adoption, in what extent, and how and why have these actors actually stood opposed to the given reforms?

SRQ5 – What are motivations of domestic ruling elites for the EU rules adoption, whether and why the process of Europeanization has become the EU-driven rather than domestically-driven agenda followed by different logic of consequence versus logic of appropriateness?

Table 4. List of methods of data collections which are coupled with specific research questions

SRQ1 SRQ2 SRQ3 SRQ4 SRQ5 Direct Content ✓ ✓ Analysis Nor/Emp. ✓ ✓ ✓ Analysis

Source: Author’s own elaboration

4.3.2 Top-down and Bottom-up Approaches

Based on the defined research focus, a mixture of both “top-down” and “bottom-up” concepts of Europeanization may serve as a suitable research approach in order to assess the effectiveness of the EU transformative power on institutional and policy changes in Montenegro. Apparently, the use of dual methodological approach has its affirmation in claims of one of the most prominent Europeanization scholars emphasizing that “Europeanization is a two-ways process: it entails a ‘bottom up’ and a ‘top-down’ dimension” (Börzel 2002: 193). Essentially, the usage of dual top-down and bottom-up methods demonstrates advantages especially in terms of controlling bias of both approaches and also their common usefulness to detect when the domestic political elites are facing with strong adaptational pressure, particularly in the cases when political actors have to complete certain unpopular measures in order to reduce pressures of the EU external incentives (Lynggaard et al. 2015: 212).

In accordance with the above, top-down approach, or impact-driven process of interaction, is a highly hierarchical relationship which allows EU not only to legally impose its policies and institutions on candidate states, but also to provide important incentives for them to comply with (Börzel and Risse 2014: 2). Therefore, this research approach shall be employed due to its ability to observe empirical effects of the European integration on the domestic

55 changes (policies and institutions) in Montenegro together with its possibility to deeply examine effective implementation and enforcement of the EU rules and norms in this regard. Detecting the effectiveness of the EU transformative power on governmental structural changes in Montenegro represents the main advantage of this top-down approach.

In addition, the research shall also rely on bottom-up approach. This methodological concept assumes that domestic factors possess the ability to align with the EU requirements and subsequently with those requirements which are reflected within the EU rules, norms, and policies (Laursen et al. 2013: 132). Therefore, this approach observes and explains main obstacles at the domestic level which prevent smooth and effective implementation of suggested EU requirements. Issues of powerful influence of veto players, existence of autocratic leaders, and lack of appropriate domestic administrative infrastructure at the bottom- up level remains the main impediment which undermines the functional harmonization of domestic laws with the acquis communautaire. More importantly, the usage of this particular approach has been decided upon due to the inability of the top-down approach to precisely and accurately identify domestic political changes. As a result, the bottom-up research method has introduced more accurate and clear research mechanisms which will be able to trace the evolution of policy systems and institutions at the domestic level in the given time span in Montenegro. Moreover, this method could identify main episodes of change, while at the same time identifying causes (Lynggaard et al. 2015: 211).

4.4 Limitations versus Contribution of Research

Research limitations may be caused by the author’s choice to examine Montenegro as a single case study rather than the whole Western Balkans region as a single unit. On the other hand, the combination of various qualitative methods of data collection, ranging from the single case study method, to the qualitative content analysis, and the qualitative normative and empirical analyses may constitute a suitable research framework for providing new scientific data, as well as possibility for enhancement of current scientific knowledge in the fields of European integration, the EU studies, small state studies, and the Western Balkan politics.

5. Empirical Findings

5.1 Judicial Reform in Montenegro

5.1.1 The Union-driven judiciary reform pressure and the domestic response

5.1.1.1 Pre-negotiating stage

The introduction to this chapter briefly outlines the EU-driven judiciary reform promotion, as well as the domestic responses in 2006: i.e., the year when Montenegro gained its independence. This is to familiarize with state of affairs within the judiciary reform in the country before the time frame of this research.

Correspondingly, the 2006 Montenegro Progress Report accompanied by the EU Enlargement Strategy 2006-2007, issued by the European Commission (Commission) on 8 November 2006, primarily underlined the necessity of establishing a strategy of judicial reform, as well as adoption of the Law on Judicial Education and creation of the Judicial Training Centre (JTC), and additionally raised major concerns in regards to judicial independence in relation to reducing political influence of the Parliament (European Commission 2006a: 42-43; European Commission 2006b: 10). Shortly after the introduction of the Commission`s recommendations, the Government of Montenegro (hereinafter referred to as the Government) presented judicial strategy framework entitled Judicial Reform Strategy 2007-2012 in June 2007, along with an Action Plan for Implementation of the Justice Reform Strategy 2007-2012 on 27 December 2007, and the Commission for the Implementation of the Action Plan on 27 March 2008. Furthermore, the Parliament adopted the Law on Judicial Education on 27 April 2006 based on which Judicial Training Centre (JTC) was to be established as a special organizational unit within the Supreme Court of Montenegro.

Judicial independence

The introduction of European Partnership with Montenegro, which came into force on 17 January 2007, as an essential element of the pre-accession strategy, yielded novelties in the terms of addressing judicial reform issues. In this sense, the European partnership as means of supporting the European perspective of the Western Balkans strictly defines main short-term and medium-term priorities, referring both to adoption of legislative acts, their implementation and institution-building, all of which were expected to be accomplished within the period of 2 to 4 years. As a result, evaluation of track records of the European partnership priorities tackled

57 by Montenegro were to be examined through the mechanisms established under the Stabilisation and Association Process (SAP), notably the annual Progress Reports presented by the Commission (Council of the European Union 2007: 2).

With reference to short-term priorities within the judiciary reform, the Council of the European Union (Council) placed considerable emphasis on judicial independence, stating that Montenegro needed to adopt new Constitution which enabled prevention of political interference into judicial affairs (Council of the European Union 2007: 3). Furthermore, the EU underlined the necessity of strengthening judicial independence and impartiality through already introduced provision of sustainable financing for the judicial sector and autonomy of prosecutor’s office by highlighting the importance to “remove control of recruitment and career management from the Parliament and establish transparent procedures based on professional and objective criteria for selection and career advancement” (Council of the European Union 2007: 6).

It took only 4 months after the introduction of the European Partnership for the Montenegrin government to adopt the Action Plan for Implementation of the European Partnership: the plan was approved on the government session on 17 May 2017. Correspondingly, in line with the Council’s recommendations over accomplishment of the short-term priorities over strengthening the country’s judicial independence, the Parliament initially adopted new Constitution on 19 October 2007, consequently bringing new changes within the judiciary. In that regard, new constitutional provisions were to reduce politicization of judiciary through the active role of the Parliament in appointing and dismissal of judges and abolition of judge immunity by transferring those competences to Judicial Council. Additionally, new constitutional provisions further elaborated principle organizational units in the judiciary Chapter 5 – Courts, by stating the difference between the Supreme Court, and composition and jurisdiction of the Judicial Council (Constitution of Montenegro 2007, Articles 123, 126, 127, 128).

In addition, concerning the Union’s recommendations over providing adequate and sustainable financing of the judicial system, as well as guaranteeing enhancement of autonomy and efficiency of the prosecutors (in relation to budgetary issues as well), the Parliament of Montenegro (hereinafter referred to as the Parliament) adopted the Law on salaries and other income of holders of judicial office and the rules and procedure of the state prosecutor’s office on 15 June 2007, the Law on Amendments of the Law on Courts on 2 April 2008, and the Law

58 on Amendments of the Law on State Prosecutors on 27 June 2008. However, although some progress was indeed made in strengthening the legal framework over judicial independence, it needs to be mentioned that, when it comes to the Council’s suggestion to remove control of recruitment and career management from the Parliament and establish transparent procedures based on professional and objective criteria for selection and career advancement, the state bodies of Montenegro did not engage in any action in order to tackle this short-term priority.

By the same token, the EU did not change the scope of its medium-term priorities consequently focusing on independence, effectiveness and efficiency of Montenegrin judicial system. In this respect, the Council underlined the necessity of empowerment of judicial independence through the introduction of a credible judicial reform strategy and its effective implementation by simultaneously underlining the relevance of implementation of transparent recruitment and career management procedures (Council of the European Union 2007: 21).

In respect to the Council’s concerns over fulfilment of medium-term priorities in completing the strategic framework of judiciary and implementation of reform plans, the state bodies introduced a number of activities, measures and plans aiming to effectively implement the Judicial Reform Strategy (Vlada Crne Gore, Akcioni Plan za implementaciju preporuka Evropskog partnerstva 2007: 20).12

The 2007 Montenegro Progress Report accompanied by the EU enlargement strategy and its main challenges for 2007-2008, which came into force on 6 November 2007, clearly stressed the then reform of judicial system being at the beginning of the reform process, and therefore it required further strengthening of the judiciary system, particularly in areas of judicial independence, accountability, efficiency and effectiveness. In this regard, although the country demonstrated certain progress in reforming its judicial system through the adoption of the Judicial Reform Strategy and the new Constitution, EU primarily outlined that the main problem within the judiciary predominantly lay with the insufficient independence of judicial institutions. Pending the entry into force of implementing legislation to the new constitution, the Commission raised serious concerns over the political influence of the Parliament on the judicial system, particularly so in terms of appointments of the Judicial and Prosecutorial

12 The middle medium-term priorities have not been specifically explained because the fulfilment of these measures are carried out during the whole pre-negotiating phase. More more details: Appendix 1 – Judicial Reform in Montenegro – normative and empirical analysis of documents EU – Montenegro for a period of 2006 to 2017, pp. 139-140.

Councils, as well as appointment, dismissal, promotion and disciplinary proceedings of judges and prosecutors (European Commission 2007b: 11).

In line with the Commission’s recommendations over judicial independence stipulated within the 2007 Progress Report, particularly so in terms of the appointment of the Judicial and Prosecutorial Councils, the Parliament adopted the Law on Judicial Council on 28 February 2008, thus further regulating procedures for appointment and dismissal of members of the Judicial Council from the ranks of judges. Furthermore, Amendments to the Law on State Prosecutors on 27 June 2008, which defined the jurisdiction of the Prosecutorial Council, were also adopted (Vlada Crne Gore, Izvještaj o realizaciji mjera iz Akcionog plana za implementaciju Strategije reforme pravosuđa 2007-2012. godine za prvi polugodišnji period decembar 2007 – jul 2008. godine: 3-5, hereinafter referred to as Izvještaj o realizaciji mjera iz Akcionog plana za period decembar 2007 – jul 2008). Moreover, the judicial sector took additional efforts towards strengthening the institutional framework by establishing the Judicial Council and selecting their members on 19 April 2008, as well as introducing the Prosecutorial Council on 30 August 2008 (Vlada Crne Gore, Izvještaj o realizaciji mjera iz Akcionog plana za implementaciju Strategije reforme pravosuđa 2007-2012. godine za prvi polugodišnji period jul 2008 – januar 2009: 3, hereinafter referred to as Izvještaj o realizaciji mjera iz Akcionog plana za period jul 2008 – januar 2009).

Additionally, in respect to the Commission’s requirement over appointment and dismissal, promotion and disciplinary proceedings of judges and prosecutors by the Parliament, the state bodies conducted certain activities towards strengthening the appropriate legal framework. Apart from constitutional provisions and amendments to the laws on courts, on the judicial council, and on state prosecutors, the Judicial and Prosecutorial Councils adopted the Rules of Procedures of the Judicial and Prosecutorial Councils on 29 March 2008 and on 1 September 2009, which further elaborated criteria for appointment, dismissal and disciplinary procedures of judges and prosecutors, and also established procedures for evaluation and promotion of prosecutors (Izvještaj o realizaciji mjera iz Akcionog plana za period decembar 2007 – jul 2008: 3; Izvještaj o realizaciji mjera iz Akcionog plana za period jul 2008 – januar 2009: 11). Furthermore, concerning the disciplinary procedures against judges and prosecutors, the presidents of courts submitted 6 proposals for disciplinary proceedings and 4 proposals for dismissal of judges in 2008, while, in case of state and deputy state prosecutors, no disciplinary measures were conducted in the given year (Izvještaj o realizaciji mjera iz Akcionog plana za period jul 2008 – januar 2009: 4, 11, 14).

Soon after Montenegro submitted its application for EU membership, the Commission launched the EU enlargement strategy and its main challenges for 2008-2009 accompanied by the 2008 Montenegro Progress Report on 5 November 2008. The strategy confirmed that Montenegro started with conducting the political reforms, but it also emphasized that on the road to effective implementation of the judicial reform requirements major challenges remained, especially in terms of pursuing the enforcement of independence, accountability, and efficiency of the judicial sector (European Commission 2008a: 43).

Unlike the enlargement strategy, the 2008 Montenegro Progress Report evidently went into more detailed evaluation of the judicial reform conditions, specifying at the same time main reform problems within the judiciary sector. In this regard, the Commission primarily raised serious concerns in regard to the judicial independence, indicating that this issue remained a prevalent problem for functioning of the judicial system. Major problem of effective functioning of the judicial sector was seen in potentially strong interference of legislative and executive power over judicial competences. Thus, the Commission indicated that:

“For the prosecution service in particular, where the future council will be elected by parliament, the risk of political influence remains high. The division of responsibility for supervision of the courts between the Ministry of Justice and the Judicial Council provide for in the new legislation and the participation of the Minister of Justice as a voting member of the Judicial Council are further factors putting the independence of the judiciary at risk.” (European Commission 2008b: 11) At bottom level, with reference to the Union’s suggestion of the existence of clear risk of the judicial independence through the Parliament`s involvement in the election of the Prosecutorial Council, as well as the participation of the Ministry of Justice as voting member in the Judicial Council, Montenegro did not demonstrate any progress during 2008.

The 2009 Montenegro Progress Report accompanied by the EU enlargement strategy and its main challenges for 2009-2010 launched on 14 October 2009 subsequently arrived after Montenegro submitted its application for EU membership. Unlike the enlargement strategy, the 2009 Montenegro Progress Report provided detailed evaluation of what had been done in the field of the reform of judiciary up to the given moment and what lacked in Montenegrin judicial sector in terms of this issue being the key European Partnership priority. As it was the case with the enlargement strategy, the Progress Report outlined that Montenegro demonstrated a moderate progress in the area of judicial reform through the strengthening of legal framework and implementation of certain legislative reforms (European Commission 2009a: 48).

However, major problem that still remained was independence of the judicial system, particularly in relation to the political influence of legislative and executive branches on judges and prosecutors. The Commission thus clearly indicated that:

“Serious concerns regarding the independence of judges and prosecutors persist. Scope for political influence exerted on the prosecution exists through the appointment of the Prosecutorial Council by parliament and the parliament’s powers to appoint and dismiss the State prosecutors. The unclear division of responsibility for supervision of the courts between the Ministry of Justice and the Judicial Council, the participation of the Minister of Justice as a member of the Judicial Council and the election and dismissal of the president of the Judicial Council by parliament, constitute further causes for concern regarding the independence of the judiciary.” (European Commission 2009b: 11) In respect to what has been said of changes on the domestic level and especially in regards to the Commission having serious concerns on the judicial independence in relation to the active involvement of the Parliament, i.e., appointment of the Prosecutorial Council, appointment and dismissal of the State Prosecutor and the President of the Judicial Council, and unclear division of responsibilities for supervision of the courts between the Ministry of Justice and the Judicial Council, the Montenegrin state bodies during 2010 failed to introduce any specific measures or recourse to any activities in order to tackle these particular issues.13

Parallel to the new Enlargement Strategy and its main challenges for 2010-2011, the Commission introduced Opinion on Montenegro’s application for membership of the European Union on 9 November 2010 (European Commission 2010a; European Commission 2010b). Based on the progress towards the fulfilment of the criteria defined by the Copenhagen European Council in 1993 and the conditions of the SAP, the Commission recommended the EU Council to grant Montenegro the status of the candidate country. As a result, and also following this positive turn of events, the European Council indeed did so and in its conclusion on 17 December 2010 agreed to assign Montenegro with the status of candidate country (European Council 2010: 3).

In this respect, the Commission clearly underlined the improvement which Montenegro made up to that particular point, chiefly by strengthening the legal and institutional framework of the judiciary and ‘setting up of new institutions such as the judicial and prosecutorial councils and measures adopted to improve independence and efficiency.’ However, main

13 In 2010 the Judicial Council elected 36 judges, while the disciplinary commission had submitted 3 procedures against judges, based on which the commission also launched dismissal procedures against 2 judges. No available information in regards to appointment, dismissal and disciplinary procedures against prosecutors and deputy prosecutors could be found. For more details: http://sudovi.me/podaci/sscg/dokumenta/41.pdf.

62 concerns regarding effective implementation remained, as well as worries about strong political interference in the judiciary system, chiefly in terms of politicisation of the judiciary through the active role of the parliament in appointing judicial and prosecutorial councils and state prosecutors. In addition, the Union raised additional concerns in relation to the accountability and efficiency of the judicial system (European Commission 2010b: 6).

Hence, the Commission shared the opinion that further advancement of Montenegro in the accession process in order to reach the negotiation stage was to be achieved with the potential candidate country meeting following key priorities:

“Strengthen rule of law, in particular through de-politicised and merit-based appointments of members of the judicial and prosecutorial councils and of state prosecutors as well as through reinforcement of the independence, autonomy, efficiency and accountability of judges and prosecutors.” (European Commission 2010b:11)

At the domestic level, based on the decision of the European Council from 17 December 2010 to grant Montenegro the status of the candidate country, the Government in response adopted the Action Plan of Monitoring Recommendation from the European Commission on 17 February 2011 (Vlada Crne Gore, Akcioni plan praćenja sprovođenja preporuka iz mišljenja Evropske komisije 2011: 2).14 In particular, the Action Plan was a subject of both external and internal monitoring, which meant that the plan had been originally submitted to the Commission (but also to the Venice Commission or SIGMA, depending on the topic) for providing comments and suggestions after which the Government itself (but also the Assembly Committee for International Relations and European Integration and the National Council for European Integration) considered and evaluated monthly reports on realization of obligations within the Action Plan (Informacija o realizaciji ključnih aktivnosti iz Akcionog plana sprovođenja preporuka iz mišljenja Evropske komisije 2011: 2, hereinafter referred to as Informacija o realizaciji ključnih aktivnosti iz Akcionog plana 2011).

Therefore, in regard to the Commission’s concerns over judicial independence, especially when it comes to de-politicised and merit-based appointments of the Judicial and Prosecutorial Councils and state prosecutors, as well as reinforcement of independence and autonomy of judges and prosecutors, Montenegrin state bodies had to take several activities towards strengthening institutional and legal framework, particularly through the adoption of

14 This document also contains the Action Plan of the Parliament of Montenegro.

63 respective amendments to constitution and appropriate legislation. Primarily, the Government adopted the Draft amendments to the Constitution within the judiciary on 3 June 2011 and also the Procedure to constitutional amendments on 7 June 2011. Correspondingly, the draft amendments to the Constitution contained changes in terms of composition of the Judicial and Prosecutorial Councils, appointment of the President of the Supreme Court, competences of the Parliament in appointing and dismissing the President of the Supreme Court, Supreme State Prosecutor, state prosecutors and members of the Prosecutorial Council, as well as jurisdiction over appointment and dismissal of the President and judges of the Constitutional Court (Informacija o realizaciji ključnih aktivnosti iz Akcionog plana 2011: 8).

In addition, the Parliament adopted Amendments to the Law on Judicial Council and Amendments to the Law on State Prosecution Office on 4 August 2011 in order to improve independence of judges and prosecutors. In that sense, the Amendments to the Law on Judicial Council and the Law on State Prosecution Office, along with the adopted Rules of Procedures of the Judicial and Prosecutorial Councils on 30 November 2011 and 4 November 2011, further improved the system of appointing members of the Judicial Council from the rank of judges, procedures for proposing candidates for the appointment of the President of the Supreme Court, appointment of judges, criteria for judges being elected for the first time, and procedures for promotions of judges and presidents of courts. It also further developed the procedure for appointing deputies of state prosecutors, special prosecutor and deputy special prosecutor, revising the existing criteria for election and their objective evaluation based on sub-criteria, and additionally established criteria and sub-criteria for the first appointment of the deputy state prosecutor, appointment of the deputy state prosecutor who advances and evaluates candidates (Vlada Crne Gore, Peti mjesečni izvještaj o realizaciji ključnih aktivnosti iz Akcionog plana sprovođenja preporuka iz mišljenja Evropske komisije – Jul 2011: 48 – 49; Informacija o realizaciji ključnih aktivnosti iz Akcionog plana 2011: 9).

Likewise, following the adopted legislative changes the judicial system saw changes towards strengthening its institutional framework. In this respect, the new Commission for appointment of judges was established on 15 July 2011 and based on new institutional amendments the president of the Judicial Council is no longer a member of the Commission. In addition, in regards to transparent procedure for the election of judges having been

64 introduced, new advertising procedure of appointing candidates was also established (Informacija o realizaciji ključnih aktivnosti iz Akcionog plana 2011: 9).15

The Montenegro 2011 Progress Report accompanied by the EU enlargement strategy and its main challenges for 2011-2012, which were launched on 12 October 2011, provided concrete assessment of the progress of the target country in the area of judicial reform in general, and also introduced evaluation of Montenegrin advancement in the implementation process of the key priorities in particular as defined in the Commission’s Opinion from 2010.16 Within the reform of the judicial system, the Commission outlined that the Montenegro indeed demonstrated progress in the area of reinforcing its judicial system, as one of the key priorities defined in the Opinion of the Commission (European Commission 2011a: 26).

Correspondingly, the legal framework in reference to independence of judiciary and autonomy of the state prosecution was strengthened at sub-constitutional level and the process of constitutional reform saw progress (European Commission 2011b: 12). Furthermore, improvements were seen in enhancing the legislative framework through the appointments of the Judicial and Prosecutorial Council’s members and of State prosecutors in order to reduce political influence in the judicial sector. However, although the progress was made in area of strengthening the legal system, the EU still expressed certain concerns in regards to independence of magistrates and prosecutors by them being exempted from political interference. In this regard, the EU recognized that:

“Yet, with the current Constitution still in place, concerns persist over the appointment of the Supreme Court President and the Supreme State of the Prosecutor by parliament by simple majority. The appointment of the judges Constitutional Court is still not fully compliant with European standards. The limited mandates of the Supreme State Prosecutor and the Heads of Prosecutors` Offices remain problematic. The merit-based elements of the career system need to be substantially strengthened and a country-wide single recruitment system remains to be established.”

15 In 2011 the Commission appointed 8 new judges. For more details: http://sudovi.me/podaci/sscg/dokumenta/5071.pdf. 16 Based on the then progress of Montenegro in the EU integration process, the European Parliament adopted the Resolution on the 2011 Montenegro Progress Report on 29 March 2012. However, taking into account that the Parliament repeated recommendations stipulated within the 2011 Montenegro Progress Report, and perhaps far more importantly that the European Commission remained a leading EU institution for conducting the enlargement process, this study is mainly focused on the Commission’s suggestions stipulated within the reports and the enlargement strategy. For more details: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=- %2f%2fEP%2f%2fTEXT%2bTA%2bP7-TA-2012- 0117%2b0%2bDOC%2bXML%2bV0%2f%2fEN&language=EN.

(European Commission 2011b: 56) Based on the Council’s decision to start the process of accession negotiations with Montenegro in June 2012 and followed by the Commission’s positive assessment of reforms within the 2011 Progress Report, the Government adopted the Annex to Report to European Commission on Montenegro`s Progress for 2012 – for a period of 1 September 2011 to 25 April 2012 on 25 April 2012 and also Annex to Report to European Commission on Montenegro`s Progress for 2012 – for a period of 25 April 2012 – 1 September 2012 on 6 September 2012. This was done in order to timely and adequately conduct the monitoring process of the judicial reform in Montenegro prior to the accession negotiations being open (European Council 2011: 5; Vlada Crne Gore, Prilog izvještaju Evropske komisije o napretku Crne Gore za 2012. – za period 1. septembra 2011 – 25. aprila 2012; Prilog izvještaju Evropske komisije o napretku Crne Gore za 2012. – za period 25. aprila 2012. – 1. septembra 2012).

In this respect, following the Commission’s concerns over the judicial independence within the Constitution aiming to reduce the political influence in the judiciary by the Parliament, particularly so over the appointment of the Supreme Court President and the Supreme State of the Prosecutor by the Parliament by simple majority, and appointment of judges of the Constitutional Court, the Parliamentary Committee on the Constitutional Affairs and Legislations adopted the Draft Amendments to the Constitution of Montenegro and Draft of Constitutional Law for the Implementation of the Amendments to the Constitution of Montenegro on 28 May 2012 (Prilog izvještaju Evropske komisije o napretku Crne Gore za 2012. – za period 25. aprila 2012. – 1. septembra 2012: 3).

Furthermore, additional efforts in strengthening judicial independence were being conducted in the context of adopting legislative and improving the institutional set-up at sub- constitutional level. Consequently, in line with the amendments within the Law on Judicial Council (2011) and Law on State Prosecution Office (2011), the Judicial and Prosecutorial Councils adopted the Rules of Procedures on 30 November 2011 and on 4 November 2011. Correspondingly, the rules of procedures closely determined a system of criteria for election and promotion of judges and court presidents and state prosecutors and its deputies, and additionally prescribed forms for applying for a public advertisement, introduced a form of opinion, evaluation of candidates selected for the first time, and a professional list of judges and prosecutors (Prilog izvještaju Evropske komisije o napretku Crne Gore za 2012. – za period 25. aprila 2012. – 1. septembra 2012: 71-72; Prilog izvještaju Evropske komisije o napretku Crne Gore za 2012. – za period 1. septembra 2011 – 25. aprila 2012: 71).

Finally, in reference to the Commission’s concerns over the issue of limited mandates of the Supreme State Prosecutor and the Heads of Prosecutor Offices, the constitutional amendments foresaw appointments of the Supreme State Prosecutor and the Heads of Prosecutor Offices for 5-year terms.

Overall, concerning the Commission’s assessment of steady progress made by Montenegro in 2011 by achieving overall satisfactory results in meeting 7 defined priorities, including reform of judicial system published in the document entitled Report from the Commission to the European Parliament and the Council on Montenegro`s Progress in the Implementation of Reforms from 22 May 2012, the European Council decided to open the accession negotiations with Montenegro in late June 2012 (European Commission 2012a: 12).

Based on the provided theoretical framework, clear mechanisms of the Union’s externally driven incentives to Europeanization did not work appropriately in strengthening the given judicial independence dimension during the pre-negotiation phase due to the incompatibility of EU and domestic factors. Although the external incentives model followed by the EU conditional policy clearly defined independence of judges and prosecutors as a key condition for moving forward in the EU integration process (determinacy of conditions), the size and the speed of the rewards, the credibility of conditionality and role of veto players and size of domestic adoption costs had substantially affected the effectiveness of the EU conditionality (Schimmelfennig and Sedelmeier 2005: 12-17; Sedelmeier 2011: 15; Cebelis 2016: 20).

Judicial accountability

Concerning the recommendations stipulated within the 2008 Progress Report, the Union outlined the importance of enhancing the judicial accountability through the improvement of the Code of Ethics. In this sense, the state bodies of Montenegro had to consequently conduct several activities and recourse to specific measures aiming to further develop the judicial sector primarily through the adoption of the Code of Ethics of Judges on the Conference of judges held on 26 July 2008. Moreover, establishment of the Commission for monitoring the implementation of the Judicial Code of Ethics within the Judicial Council, as well as the mechanism for Monitoring the Code of Ethics of state prosecutors and deputy state prosecutors were also approved (Izvještaj o realizaciji mjera iz Akcionog plana za period decembar 2007– jul 2008: 6; Vlada Crne Gore, Izvještaj o realizaciji mjera iz Akcionog Plana za implementaciju Strategije reforme pravosuđa za 2009. godinu 2010: 5, hereinafter referred

67 to as Izvještaj o realizaciji mjera iz AP za 2009. godinu 2010). Likewise, the Judicial and Prosecutorial Councils at that time engaged in further activities towards introducing the Records for non-compliance with the Code of Ethics, and, based on report period of 2008-2009, there were no violations of the Code of Ethics by judges, prosecutors and deputy prosecutors (Izvještaj o realizaciji mjera iz Akcionog plana za period decembar 2007– jul 2008: 7; Izvještaj o realizaciji mjera iz Akcionog plana za period jul 2008– januar 2009: 15; Izvještaj o realizaciji mjera iz AP za period jul 2008 – januar 2009. godine 2009: 16; Izvještaj o realizaciji mjera iz AP za 2009. godinu 2010: 5).

In addition, in respect to the Commission’s suggestion over the improvement of the accountability of judges and prosecutors within the Opinion in Montenegro`s application for the membership (2010) and following the Action Plan of Monitoring Recommendations from the Opinion (2011), further activities were being conducted by Montenegrin state authorities in order to additionally enhance the legislative measures and institutional framework. In this sense, amendments to the Law on Judicial Council and Rules of Procedure further elaborated disciplinary measures and procedures against judges, as well as enhanced the system of objective evaluation. Consequently, based on the new legal provisions, the Judicial Council established the Disciplinary Commission on 28 April 2011 and the Commission for monitoring implementation of the code of ethics for judges on 10 October 2011, both of which resulted in establishment of the records of non-compliance with the Code of Ethics of judges based on which there was no code violation back in 2010 (Informacija o realizaciji ključnih aktivnosti iz Akcionog plana 2011: 3, 9). Furthermore, the Amendments to the Law on Courts adopted on 4 August 2011 introduced clearer procedures in disciplinary violations and measures, unprofessional and negligent work and dismissal of judges, based on which in 2011 only one judge was dismissed and one disciplinary procedure in this respect initiated (Vlada Crne Gore, Izvještaj o realizaciji mjera iz Akcionog plana za implementaciju Strategije reforme sistema pravosuđa 2007-2012 za 2011 godinu 2012: 3, hereinafter referred to as Izvještaj o realizaciji mjera iz AP za 2011 godinu 2012).

Also, the new provisions within the Amendment to the Law on State Prosecution Office established disciplinary responsibility of state prosecutors. In this regard, the Prosecutorial Council had to take further efforts in strengthening the institutional framework through the introduction of the Disciplinary Commission and the Commission for monitoring implementation of the code of ethics for prosecutors in 2011, and based on the records of non- compliance there was no disciplinary procedure and/or dismissal of state and deputy state

68 prosecutors, and additionally no violation of the code of ethics by prosecutors (Informacija o realizaciji ključnih aktivnosti iz Akcionog plana 2011: 9; Izvještaj o realizaciji mjera iz AP za 2011 godinu 2012: 3).17

By the same token, following the demands prescribed within the 2011 Progress Report, the Commission stressed the importance of strengthening the accountability of the judiciary by providing the concrete results in terms of the implementation process. Moreover, Brussels outlined the improvement of the legislative framework, as well as the institutional set-up in the field of judicial accountability through the adoption of the Codes of Ethics for judges and prosecutors and the Commission for monitoring implementation of these Codes. In line with this legal and institutional development, the Union also highlighted certain points particularly related to effective implementation and enforcement of the aforementioned legislations having been adopted. The Commission clearly pointed out that ‘corruption and conflict of interest rules are still insufficiently monitored in the judiciary,’ while ‘both judges and prosecutors continue to enjoy functional immunity from prosecution’ (European Commission 2011b: 11). This kind of comprehensive protection of judges and prosecutors remained a matter of concern. As a result, the EU suggested that ‘procedures for removing functional immunity need to be strengthened to ensure full accountability of judges and prosecutors under criminal law.’ Furthermore, the Commission indicated that the state authorities should devote more attention to the issue of publicity of court rulings, since, although foreseen, it was by that time still not implemented in practice (European Commission 2011b: 11).

Concerning the Commission`s concern of judicial accountability, particularly so in terms of insufficient monitoring of judiciary over corruption and conflict of interest, the Annexes to Report to the European Commission indicate that no additional activities were conducted by the judiciary except of annual performance of the Disciplinary Commission of judges and prosecutors. In this respect, between September 2011 and the end of December 2012, the Disciplinary Commission launched only 1 disciplinary procedure against 1 judge, and only 1 disciplinary measure/warning was imposed. In addition, when it comes to the disciplinary proceedings against prosecutors, no disciplinary procedures were launched in this regard during both 2011 and 2012 (Prilog izvještaju Evropske komisije o napretku Crne Gore za 2012. – za period 25. aprila 2012. – 1. septembra 2012: 77).

17 No available information regarding the appointment of prosecutors and deputy prosecutors, dismissal and disciplinary procedures against prosecutors and deputy prosecutors can be found.

By the same token, with reference to the Union’s suggestion on devoting more attention to the issue of publicity of court rulings, the judicial system demonstrated efforts in strengthening and reinforcing the institutional set. In this regard, all the cases, including the old ones, were transferred into the Judicial Information System – PRIS by 31 December 2011. Moreover, the court website, that is the web-site www.sudovi.me, contained information regarding work and organization of the courts and information with reference to information on trial terms, judgments, and similar particularities (Prilog izvještaju Evropske komisije o napretku Crne Gore za 2012. – za period 1. septembra 2011 – 25. aprila 2012: 74). Last but not least, in relation to the Commission’s demand towards the comprehensive protection of judges and prosecutors within the functional immunity, no further normative or institutional measures were conducted by Montenegrin state bodies.

Following the descriptive analytical framework regarding the EU transformative power on domestic changes over judicial accountability, the process of Europeanization of Montenegro was primarily characterized as the EU-driven during the pre-negotiation phase. Besides the determinacy of EU conditions, the effectiveness of EU conditionality substantially depended on various sets of conditions, namely the size and the speed of the rewards, the credibility of threats, and the size of the adoption costs. Therefore, based on the defined mechanisms of the externally driven initiatives, the Union demonstrated deficient reinforcing effects over strengthening the judicial accountability dimension in Montenegro (Schimmelfennig and Sedelmeier 2005: 10-12).

Judicial effectiveness

Following the short-term priorities stipulated within the Council’s European Partnership (2007), the Union specified further requirements over strengthening judicial effectiveness by noting that Montenegro needed to ‘rationalise the court system and modernise proceedings and improve administration.’ In this sense, apart from the laws on courts and on state prosecutors (2008), the Parliament engaged in a number of actions aiming to reinforce current legal system by adopting new Criminal Procedure Code (CPC) on 18 August 2009 and the Law on protection of the right to a trial within a reasonable time on 13 December 2007.

In addition, with reference to the Council’s medium-term priority over continuation of upgrading efficiency of the prosecution system, further efforts were being conducted in

70 implementation of the CPC and the Judicial Reform Strategy (Council of the European Union 2007: 21; Akcioni Plan za implementaciju preporuka Evropskog partnerstva 2007: 20).18

Furthermore, concerning the Commission’s recommendations stipulated within the 2007 Progress Report, the Union underlined the wide-spread problem of judicial effectiveness in Montenegro. In particular, it outlined the issue of significant backlog of both civil and criminal cases remaining a matter of serious concern, thus indicating a lack of strategy in solving this problem. Also, the Commission emphasized urgent need to solve evident problem of effectiveness in Montenegrin judicial sector by outlining that further efforts needed to be directed towards resolving insufficient career development rules, while performance of prosecutors needed to be realised in representing the state in property and legal matters (European Commission 2007b: 11).

In respect to serious concerns of the Union over judicial effectiveness, especially over significant backlog in both civil and criminal cases, the state authorities initiated a number of plans towards strengthening the legal and institutional framework and its enforcement. Primarily, continuous effort were made in resolving high number of pending cases caused by excessively lengthy and insufficiently implemented execution procedures through the adoption of the Law on Obligations on 7 August 2008 and implementation of the Law on protection of the right to a trial within a reasonable time (2007) (Izvještaj o realizaciji mjera iz Akcionog plana za period decembar 2007 – jul 2008: 9; Izvještaj o realizaciji mjera iz Akcionog plana za period jul 2008 – januar 2009: 16; Izvještaj o realizaciji mjera iz AP za 2009. godinu 2010: 8).

In addition, state bodies took further measures over strengthening institutional framework of the judiciary. For instance, the Mediation Centre was established in 2008, and the number of solved cases through alternative dispute resolution was thus recorded: out of 255 out of 433 cases were successfully solved by using the instrument of mediation procedures in 2008 (Izvještaj o realizaciji mjera iz Akcionog plana za period decembar 2007 – jul 2008: 10). Additionally, Annual framework programs of backlog cases for 2008 was established, and in the period between 31 December 2007 and 31 December 2008, the backlog was significantly reduced to 35,533 cases out of the total number of 53,624 cases within all courts (Sudski savjet 2008: 35). Last but not least, the Parliament adopted the Law on State Property on 20 March

18 For further information please check the Appendix 1 - Judicial Reform in Montenegro-normative and empirical analysis of documents EU – Montenegro for a period of time 2006-2017, pp. 139-140.

2009 and thus addressed issues of judicial effectiveness, particularly in terms of prosecutor’s representation of the state in property and legal matters. However, although the adopted law foresaw the representation of the state in property-legal disputes by no longer being under jurisdiction of state prosecutors, additional activities towards strengthening the institutional framework through the Protector of Property-Legal Interests of Montenegro were not witnessed in the given period (Izvještaj o realizaciji mjera iz Akcionog plana za period jul 2008 – januar 2009: 3).

The 2008 Progress Report highlighted that judicial effectiveness remains low at that time. Thus, a high number of pending cases and excessively lengthy procedures, alongside insufficient execution procedures, remained one of the primary Union concerns in this regard.

In this respect, Montenegrin authorities went on to further enhance the state’s legislative measures and institutional set-up. In particular, regarding the Commission’s recommendation over high number of pending cases, excessively lengthy procedures and insufficient execution procedures, the Parliament adopted the Amendments to the Law on Notaries on 15 August 2008, followed by establishment of the Commission for taking notary exams which consequently organized the first notary exam already in 2009 (Izvještaj o realizaciji mjera iz AP za 2009. godinu 2010: 10-11).

In addition, the government report emphasized the fact that substantial progress was made towards decreasing the number of backlog cases in the national courts. Originally, the Judicial Council and Supreme Court established Annual framework programs of backlog cases for 2009, and in the period between 1 January 2009 and 1 January 2010, the backlog was significantly reduced to 34,081 cases out of the total number of 44,726 cases. Additionally, number of solved cases through alternative dispute resolution was as follows: in 2009, 300 cases out of 492 in total were successfully solved by using the instrument of mediation procedures in family disputes, while out of 33 cases it was 27 that were successfully solved by using the instrument of mediation procedures in commercial and property disputes (Izvještaj o realizaciji mjera iz AP za 2009. godinu 2010: 8, 11-12).

By the same token, following the requirements within the 2009 Progress Report the Commission suggested further enhancing the effectiveness of the judicial system. In this sense, it was indicated that ‘judicial enforcement procedures remain inefficient while lengthy court procedures remain a cause for concern.’ Furthermore, the EU emphasized that new legislation measures, such as the Law on the right to trial within reasonable time, had indeed entered into

72 force but without any effective track-record of implementation. Moreover, the Commission outlined that random allocation of cases in courts had not by that time been fully implemented and also not computerised. Finally, the Union underlined the necessity of improving reliability of court data and introducing computerised case management system in Montenegrin courts.

In respect to the Union’s concern over the judicial effectiveness, particularly so in the context of inefficient judicial enforcement procedures and lengthy court procedures, the legislative, executive and judicial branches had by that period of time engaged in only limited efforts towards establishing the bailiff system (Vlada Crne Gore, Izvještaj o realizaciji mjera iz Akcionog plana za implementaciju Strategije reforme sistema pravosuđa 2007-2012 za 2010 godinu 2011: 12, hereinafter referred to as Izvještaj o realizaciji mjera iz AP za 2010. godinu 2011).

Moreover, as for the Commission’s suggestion over the random allocation of cases in courts which needed to be implemented and also computerized, the judicial institutions had partially engaged in the implementation of the prescribed measure. Hence, the judicial bodies (presidents of courts and state prosecutors) had the opportunity to follow the movement of cases within the judiciary followed by the introduction of Judicial Information System (PRIS) in 2010 as a complete and functional information system within the judicial bodies (Izvještaj o realizaciji mjera iz AP za 2010. godinu 2011: 11).

Finally, in line with Brussels’ suggestion over the need to improve reliability of court data, as well as the introduce a computerised case management system in all courts, state bodies made further efforts towards enhancing the legislative framework and improving the institutional set up. In this respect, the Parliament adopted the Law on Information Security on 17 March 2010. In 2010, activities towards the introduction of PRIS in the state prosecutors' offices were completed, thus allowing for data to be inserted in the database created in this program, for the date to be used on regular basis, and finally for them to be frequently updated while training future users was already underway (Izvještaj o realizaciji mjera iz AP za 2010. godinu 2011: 49). Furthermore, conditions for centralization of data were created, and the entry of existing data and their regular update was made possible: new equipment was purchased, proper technical conditions established in order to provide secure access to the state institutional networks, with new application solution, case management software (PRIS) and database having been installed. As a result, it was in January 2010 that entering data, alongside unsolved data of course, started: state prosecutors had by that time aggregated their own data

73 also, thus demonstrating preparedness in reducing the backlog of cases, especially through PRIS, with further activities being oriented towards aggregation and centralization of data in the supreme state prosecutor`s office (Izvještaj o realizaciji mjera iz AP za 2010. godinu 2011: 52-53).

Following the Commission’s recommendations stipulated within the Opinion on Montenegro`s application for the EU membership (2010), particularly so over the reinforcement of the effectiveness of judges and prosecutors, the state authorities demonstrated further efforts in improving the legislative and institutional framework, and reinforcing sustainability of reforms through credible track records of implementation.

In this respect, the Parliament adopted the Law on Enforcement and Security of Claims on 27 July 2011, which brought novelty within the legal system by notably simplifying the execution procedure of court decisions, facilitating courts proceedings, reducing the backlog, and finally introducing the institution of bailiff into the national legal system (Informacija o realizaciji ključnih aktivnosti iz Akcionog plana 2011: 9-10, Izvještaj o realizaciji mjera iz AP za 2011 godinu 2012: 9). Furthermore, the Parliament also adopted the Amendments to the Criminal Procedure Code (CPC) on 22 June 2011, according to which the new law primarily incorporated the GRECO recommendations in reference to corruptive criminal felonies related to bribery and trading influences (Izvještaj o realizaciji mjera iz AP za 2011: 6).

Furthermore, additional attempts in improving the institutional set-up through the established measures of the appointment of the notaries were made. Correspondingly, the first group of 34 notaries swore an oath and the Notary Chamber was founded on 29 April 2011, whilst the first notary offices were opened already on 25 July 2011 (Informacija o realizaciji ključnih aktivnosti iz Akcionog plana 2011: 11; Izvještaj o realizaciji mjera iz AP za 2011 godinu 2012: 7).

In order to further enhance efficiency of mediators as a means of alternative settlement of disputes, the association of mediators adopted the Mediator’s Code in 2011. In 2010, there were 742 mediation cases in total, out of which 570 cases were resolved by accomplishing the agreement with mediation, and 172 cases were not solved, which consequently resulted in releasing 18 million EUR (Informacija o realizaciji ključnih aktivnosti iz Akcionog plana sprovođenja preporuka 2011: 10). In addition, 623 mediation procedures were registered in 2011, out of which 383 cases were resolved in terms of mediation, and 240 cases were not solved, thus ultimately resulting in releasing 3,772.974 EUR. Finally, in terms of solving the

74 backlog, the Annual programs for solving backlog of cases for 2010 were introduced in all courts still dealing with unfinished cases as of 31.12.2010. Correspondingly, the adopted plans in reducing significant number of cases confirmed that on 30.09.2011 there were 5,813 unsolved cases all dating to previous years (Informacija o realizaciji ključnih aktivnosti iz Akcionog plana 2011: 12; Izvještaj o realizaciji mjera iz AP za 2011 godinu 2012: 7, 28).

The EU remarked that Montenegro showed progress in regards to judicial effectiveness based on the 2011 Progress Report, in particular in the context of reducing the backlog of cases. However, the Union expressed concerns with reference to reliability of conducted methodological framework. Based on the report conclusion, the Commission highlighted its distrust towards the given methods by emphasizing that ‘the statistical indicators do not provide complete information about courts' performance, the duration of case-handling and the human and financial resources allocated, thus creating problems with the consistency of data and effective follow-up’ (European Commission 2011b: 11). Furthermore, the EU noted that enforcement of civil court decisions remained weak, while concerns persisted over long duration of court proceedings (Ibid., 2011b: 11). By the same token, the Commission indicated that future activities needed to be oriented towards streamlining the courts system. According to 2011 Progress Report, ‘Montenegro continues to be one of the countries with the highest number of basic courts, magistrates, prosecutors and administrative staff in Europe’ (European Commission 2011b: 12).

In this respect, when it comes to the Union’s doubts over the weak enforcement of civil decisions and long duration of court proceedings, the additional efforts were done towards further strengthening the legislation framework and its effective implementation and enforcement. In that sense, based on the recognition of weaknesses of enforcement of court decisions, the Parliament adopted the Law on the Enforcement and Security of Claims (2011) enacted the Law on Public Bailiffs on 23 November 2011. More precisely, taking into account the recommendation of the Council of Europe, the introduction of the new law aimed at decreasing shortcomings in terms of the then systems of executions, and, more importantly, tackling the issue of judicial ineffectiveness in reducing significant number of backlog cases, duration of proceedings, disputes over the collection of claims, and improvement of executive services (Prilog izvještaju Evropske komisije o napretku Crne Gore za 2012. – za period 1. septembra 2011 – 25. aprila 2012: 12; Informacija o realizaciji ključnih aktivnosti iz Akcionog plana 2011: 10).

Last of all, concrete measures and actions by Montenegrin judiciary were identified in relation to effectiveness improvements of by streamlining the courts system so as to reduce the number of judges, prosecutors, and administrative staff.

Obviously, the externally driven social learning model based on the logic of appropriateness is also applicable in the field of judicial effectiveness dimension during the pre-negotiation stage. Following the theoretical conception of constructivist institutionalism, the principle of socialization as central mechanism for inducing the EU standards functions smoothly primarily due to existing number of both facilitating EU and domestic factors. In particular, it would be reasonable to claim that the Government complied with the Union’s requirements because it was convinced by the EU rules and processes (clear formulation of demands, legitimacy of decision-making process, and perceiving defined demands as the Union’s ownership), and it identified with the EU values and norms (Schimmelfennig and Sedelmeier 2005: 18-20; Sedelmeier 2011: 15).

Judicial efficiency

Concerning short-term priorities prescribed within the Council’s European Partnership (2007), the Union outlined the importance of strengthening judicial efficiency by implementing legislation on ‘continuous training for judges, prosecutors and court support staff,’ thus enhancing the JTC (Council of the European Union 2007: 5-6). As a response, the Centre took additional measures to effectively reinforce adoption of the Law on Judicial Education by publishing the Brochure “Law on Judicial Education” in 2007 and continued with implementation of the Annual Training Program for Judges and Prosecutors and Associates for 2007 (Akcioni Plan za implementaciju preporuka Evropskog partnerstva 2007: 12-13).

By the same token, regarding the Council’s medium-term priorities, particularly related to issues of developing capacity-building measures through adequate functioning of the JTC and effective implementation of judicial IT strategy, further steps were taken towards implementation of the Judicial Reform Strategy containing special IT strategy, engagement of foreign experts in education of judges and prosecutors, and similar issue (Council of the European Union 2007: 21; Akcioni Plan za implementaciju preporuka Evropskog partnerstva 2007: 20).19

19 For further information, please check the Appendix 1 - Judicial Reform in Montenegro-normative and empirical analysis of documents EU – Montenegro for a period of time 2006-2017, pp. 139-140.

Additionally, in respect to judicial efficiency recommendations stipulated within the 2008 Progress Report, the Union highlighted the importance of conducting properly structured initial and continuous training programmes (European Commission 2008b: 11).

In line with the Commission’s specific requirements, the JTC as an organizational unit of the Supreme Court carried out improvement measures for initial and continuous education in accordance with the Law on Judicial Education. Originally, the nature of continuous training programmes of holders of judicial functions was mostly focused on continuous trainings, especially through organizing seminars and workshops. In addition, based on transparency and evaluation of candidates’ knowledge, selection of candidates for initial training was consequently established. Likewise, the JTC adopted its Annual plan and training programme for 2009 by paying particular attention to education of judiciary on Criminal Procedure Code and European Convention of Human Rights. Apart from the conducted judiciary trainings, further actions in strengthening capacity of JTC were taken towards employment of domestic, regional and also EU lecturers, university professors and retired judiciary holders (Izvještaj o realizaciji mjera iz AP za 2009. godinu 2010: 24-26).

Concerning the recommendations stipulated within the 2009 Progress Report, Brussels stressed the importance of further improvements of judicial efficiency. Therefore, within the area of capacity-building, the need of conducting training programmes in order to prepare the prosecution service for its role in the pre-trial procedure under the new CPC was highlighted by the EU and had to be further pursued (European Commission 2009b: 11).

In respect to this requirement, only one activity was witnessed. In particular, the JTC in cooperation with UNDP Montenegro organized an event on the topic of “Implementation of the new Criminal Procedure Code, amendments to CPC and challenges in practice,” and this 13-14 September 2010 event was dedicated to judges of special department of Higher Courts and prosecutors of the Special Prosecutors Office within the Supreme State Prosecutors Office (Vrhovni Sud Crne Gore, Godišnji izvještaj o radu Centra za edukaciju nosilaca pravosudne funkcije Crne Gore za 2010. godinu 2010: 22).

With reference to the given recommendations over strengthening judicial capacities stipulated within the Commission’s Opinion (2010), the Judicial Information System (PRIS) started being operational on 1 January 2010, and the PRIS has so far been implemented in the

Ministry of Justice, the State Prosecutors’ office, and the Institute for Execution of Criminal Sanctions within a centralized and unique database system. In addition, the judiciary established the web portal of courts, www.sudovi.me, and it contains all decisions in integral text with prior anonymization of data, regulations, trial schedule, basics of court information and judges, facts, ads, and translated decisions of the European Court of Human Rights in Strasbourg (Informacija o realizaciji ključnih aktivnosti iz Akcionog plana 2011: 12; Izvještaj o realizaciji mjera iz AP za 2011 godinu 2012: 8). Additionally, in the context of strengthening administrative capacities within the judiciary, in cooperation with EIPA Institute from Luxemburg, the Annual training program of continuous education of judges and prosecutors on the EU law was permanently implemented. Moreover, the JTC continuously realized the training programme for holders of judicial functions, while the training activities were conducted in cooperation with the Supreme Court, Supreme State Prosecutor’s Office, United Nation Development Programme (UNDP) Montenegro, OSCE Mission Montenegro, US Embassy to Montenegro, EIPA Institute from Luxemburg, and other relevant bodies (Informacija o realizaciji ključnih aktivnosti iz Akcionog plana 2011: 12-13; Izvještaj o realizaciji mjera iz AP za 2011 godinu 2012: 7, 18).

Finally, in line with the recommendations on judicial efficiency stipulated within the 2011 Progress Report, the Commission indicated visible deficits in reference to the training of judges and prosecutors. According to this Progress Report, the main issue that was identified was the lack of permanent mandatory courses and set curricula, but no additional implementation measures or activities by the JTC were recognized in the given report period.

Based on already provided empirical descriptive analysis, the externally driven social learning model based on the logic of appropriateness can be applicable to the judicial efficiency dimension during the pre-negotiation phase. Under the strategy, it seems that clear mechanisms of the Union’s explanatory social driven learning model in inducing rules and norms worked appropriately both at the EU and the domestic level. In particular, Montenegro aligned with the EU conditions over enhancing judicial efficiency dimension because it got persuaded: by appropriateness and legitimacy of the EU rules and procedures: rules as clearly determined, being the result of a legitimate rule-making process, and perceived by the target country as the Union’s creation and ownership; by the state’s identification with the EU values and norms;

78 by the positive normative resonance with domestic rules20 (Schimmelfennig and Sedelmeier 2005: 18-20; Sedelmeier 2011: 15).

5.1.1.2 Negotiation stage

Shortly after the Commission evaluated good reform progress of Montenegro in line with the adoption of the acquis and alignment with EU policies within the spring report, the European Council in its conclusion on 29 June 2012 confirmed Montenegro’s further advance in the accession process by endorsing the decision to open accession negotiation with Montenegro on 29 June 2012 (European Council 2012: 4). Following the New Approach from 2012 with opening the accession negotiations by focusing on Chapter 23 – Judiciary and Fundamental Rights and Chapter 24 – Justice, Freedom and Security during the whole accession process, the Commission also conducted the process of screening Montenegrin legal and institutional framework even before opening the accession negotiations. In that sense, following the Council’s decision from 9 December 2011 to open accession negotiations with Montenegro in June 2012, and based on previously conducted process of analytical examination of the acquis communautaire with Montenegro on the Chapter 23, the Commission itself launched the Screening Report Montenegro on Chapter 23 – Judiciary and Fundamental Rights on 12 November 2012 (European Council 2011: 5; European Commission 2012d: 5).

This screening report provided analysis of the then Montenegrin legal framework and its alignment with acquis communautaire in the area of judiciary and fundamental rights, ultimately positioning itself as a most comprehensive document providing detailed examination and evaluation of judicial sector in terms of its scope. Correspondingly, the report outlined Montenegro having engaged in important reform efforts in order to align with the acquis and meet European standards, but at the same time contained remarks over further reform activities as needed in the area of independence of judiciary. Thus, the EU specifically highlighted at that time that ‘despite the legislative and organisational changes that have been made, judicial reform in terms of concrete results is at an early stage and severe shortcomings have to be tackled, in particular at constitutional level’ (European Commission 2012d: 21).

20 Domestic facilitating factors are understood under the term resonance in this research. For more details: Schimmelfennig and Sedelmeier 2005: 20.

Following the analytical outcomes, the Commission therefore stated that Montenegro should adopt one or more Action Plan(s), addressing in particular the following issues:

“Independence

• Montenegro should amend its Constitution in line with the Venice Commission recommendations and European standards, ensuring independence and accountability of the judiciary. Changes should include, inter alia, the following points:

o The Judicial Council and the Prosecutorial Council should be composed by at least 50% of members stemming from the judiciary. These members should be selected by their peers, representing different levels of jurisdiction, without involvement of the Parliament (unless solely declaratory). o Prosecutors should not be appointed by the Parliament. o Reasons for dismissal of judges and prosecutors should be included in the Constitutions.

• The recruitment process needs to be transparent and merit based. A single, nationwide recruitment system should be introduced, which could be based on anonymous tests for all candidates and obligatory training before being appointed judge/deputy prosecutor. The Judicial Training Centre could be involved in the testing process. • A fair and transparent system of promotion of judges and prosecutors needs to be established together with a periodical professional assessment of judges and prosecutors' performance. • Ensure internal independence of judges and review the system of orders within the prosecution system. • Sufficient administrative capacities and financial means need to be ensured to the Judicial and the Prosecutorial Councils to effectively perform their tasks.

Impartiality

• Improve the system of random allocation of cases, possibly also through streamlining the court. • Review application of disqualification procedures and amend where necessary. • Amend "conflict of interest" rules, ensuring that there is an effective monitoring of asset. • Ensure effective monitoring of compliance with the code of ethics. • Review the system of functional immunity for judges and prosecutors. Procedures for removing functional immunity need to be strengthened to ensure full accountability of judges and prosecutors under criminal law.

Professionalism/Competence/Efficiency

• Ensure reliable and consistent judicial statistics and introduce a system to monitor the length of trials. • Review and rationalise the court network and ensure sufficient funding for the efficient functioning of the entire court system. Further reduce the existing backlog, especially as regards. • Strengthen the enforcement of judgements in civil cases. • Ensure effective functioning of the Judicial Training Centre.“

(European Commission 2012d: 21-22)

Unlike the EU enlargement strategy and its main challenges for 2012-2013, the 2012 Montenegro Progress Report launched on 10 October 2012 consequently provided more concrete recommendations, as well as offered assessments of results in improving the judicial system of the country (European Commission 2012a; European Commission 2012b).21

In that sense, concerning strengthening of judicial independence and impartiality, the Commission suggested that further efforts needed to be oriented towards establishing ‘single, country-wide recruitment system for judges and prosecutors, based on transparent and objective criteria.’ In addition, the Union indicated that the promotion criteria for judges and prosecutors were not in the line with European standards due to lack of clarity and objectivity, thus highlighting the judicial sector’s needs in introducing periodical professional assessment of judges and prosecutors’ performance. Finally, the Union’s additional suggestions were mainly focused on the need of strengthening the Judicial and Prosecutorial Councils’ capacity by increasing both administrative capacity and budget allocations (European Commission 2012c: 10, 45).

By the same token, the Commission underlined that judicial accountability remained a matter of concern. Correspondingly, the EU indicated that ‘corruption and conflict of interest are still insufficiently monitored in the judiciary corruption and a reliable system of checking the asset declarations of judges and prosecutors needs to be established.’ Furthermore, the Progress Report highlighted the necessity of enhancing the Code of Ethics for judges and prosecutors by establishing a credible track record of fighting corruption in judiciary (European Commission 2012c: 45). Additionally, further efforts needed to be directed towards strengthening and differentiating the disciplinary system in line with the principle of proportionality, while the Disciplinary Commission’s dual role in investigating and deciding on disciplinary proceedings further redefined and changed, and information on the outcome of disciplinary proceedings published in an appropriate form (European Commission 2012c: 10, 45). Finally, Brussels recommended removing professional immunity for judges and prosecutors so as they can be fully accountable under the criminal law (European Commission 2012c: 45).

21 Following the introduction of 2012 reports of the Commission and the Council`s conclusion, the European Parliament adopted the Resolution on the 2012 Montenegro Progress Report on 18 April 2013. For more details: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-%2f%2fEP%2f%2fTEXT%2bTA%2bP7-TA-2013- 0185%2b0%2bDOC%2bXML%2bV0%2f%2fEN&language=EN.

In the terms of judicial effectiveness, the Commission suggested that further activities shall be oriented towards rationalizing the court network, mostly due to the fact that Montenegro at that time was one of the countries with the highest number of basic courts, judges, prosecutors and administrative staff per capita in Europe. In addition, although the Law on Enforcement and Security of Claims came into force aiming to transfer power for civil enforcement to the bailiffs, the EU noted that enforcement of civil decisions was still at that time rather weak, with the bailiff system in need of further improvements (European Commission 2012c: 45). Lastly, the Commission outlined enhancing the judicial capacity by noting that ‘the quality of judicial statistics needs to be improved and a system to monitor the length of trials introduced.’ Finally, the Union, within the area of judicial efficiency, emphasized the significance of putting more efforts on strengthening administrative and financial capacity of the JTC, as well as initiating trainings with set curricula for the judiciary members (European Commission 2012c: 10).

The 2013 Montenegro Progress Report followed by the EU enlargement strategy and defined main challenges for 2013-2014, which was enacted on 16 October 2013, concluded that judicial reforms in Montenegro proceeded slowly at that particular time (European Commission 2013b: 35).22 Correspondingly, the Commission raised concerns over judicial independence, especially in the process of appointing members of the Judicial Council by stating that ‘the selection criteria continue to be vague and are not assessed on the basis of clearly-defined indicators.’ In addition, the Union emphasized the importance of conducting fully transparent work of the Judicial Council, and the same time indicated the necessity of providing additional funding and administrative staff in order to facilitate smooth functioning of both Councils (European Commission 2013b: 36).

Concerning the accountability of the judiciary, the same issues continuously hampered the smooth functioning of the judicial system. Therefore, the Commission noticed that the major problem existed in terms of effectiveness of disciplinary proceedings against judges by pointing out that the disciplinary system needed to be fully align with the principles of legality, proportionality and terminating discretion in the application of disciplinary rules (European Commission 2013b: 36). Except of the issue of disciplinary commission’s dual role in

22 Following main recommendations of the Commission’s within the 2013 Montenegro`s Progress Report in the area of reform of judicial system, the EP adopted the Resolution on the 2013 Montenegro Progress Report on 6 February 2014. For more details: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=- %2f%2fEP%2f%2fTEXT%2bTA%2bP7-TA-2014- 0104%2b0%2bDOC%2bXML%2bV0%2f%2fEN&language=EN.

82 investigating and deciding on disciplinary proceedings which needed to be reviewed, the Union indicated significance of the introduction of Code of Ethics and its presentation to Montenegrin citizens (European Commission 2013b: 36-37).

In the context of judicial effectiveness, the EU highlighted its concern in regards to growing backlog of commercial courts and administrative courts, as well as the length of trials, whereas the enforcement of civil and administrative decisions remained weak (European Commission 2013b: 37). Finally, the capacity building within the judicial system needed to be further improved. Correspondingly, the PRIS needed to be enhanced in order to ensure reliable and consistent data, as well as to provide information with reference to length of trials. Furthermore, the Commission outlined the importance of strengthening independence and administrative and financial capacity of the JTC (European Commission 2013b: 37-38).

In line with the introduction of the EU enlargement strategy and its main challenges for 2014-2015, the Commission launched then 2014 Montenegro Progress Report on 8 October 2014.23 Both documents concluded that Montenegro continued to successful address the political criteria within the EU membership. However, the Union also retained certain doubts in regards to the independence of judiciary by stating that ‘the systems of recruitment and career development of judges and prosecutors still leave room for undue influence affecting the independence of the judiciary’ (European Commission 2014b: 36). In addition, the Commission indicated that selection criteria for appointments and promotion continued to be vague, and they had to be assessed on the basis of clearly defined indicators (European Commission 2014b: 36).

Concerning judicial accountability, the Union paid particular focus on further strengthening of the legal system by improving the Code of Ethics and raising public awareness of this issue, and additionally developing transparent and procedural features of Disciplinary System against judges and prosecutors, as well as providing additional clarification of immunity rules applicable to judges and prosecutors in order to ensure their full accountability under criminal law (European Commission 2014b: 37).

23 Following main recommendations of the Commission within the 2014 Montenegro`s Progress Report in the area reform of judicial system, the EP adopted the Resolution on the 2014 Montenegro Progress Report on 11 March 2015. For more details: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=- %2f%2fEP%2f%2fTEXT%2bTA%2bP8-TA-2015- 0063%2b0%2bDOC%2bXML%2bV0%2f%2fEN&language=EN.

In regard to judicial effectiveness, the Commission underlined the significance of further decrease of the backlog with all courts and improving their efficiency especially with the Constitutional Court. In addition, the Union continued to emphasize the fact that enforcement of civil and administrative decisions again remained weak, and its main recommendation was thus oriented towards the establishment of a central monitoring system of bailiffs at the national level (European Commission 2014b: 37, 38). Finally, in line with judicial efficiency, the Commission suggested that Montenegrin authorities introduce reliable and consistent judicial information system (PRIS) with its own independent budget. Furthermore, the Union accentuated the importance of strengthening both judicial independence and also administrative and financial capacity of the JTC (European Commission 2014b: 38, 39).

The 2015 Montenegro Progress Report accompanied with the EU enlargement strategy and its main challenges for 2015-2016, which was launched on 10 November 2015, highlighted that judicial system in Montenegro is moderately prepared while some progress was indeed made in the area of judicial functioning (European Commission 2015a; European Commission 2015b: 12).24 The Commission acknowledged that significant steps were taken in strengthening the legislative and institutional framework in order to enhance the judicial independence and accountability. However, main challenges that remained were related to the process of effective implementation.

Therefore, in regards to judicial independence, the Union underlined the significance of strengthening independence of judiciary by means of new recruitment, professional appraisal and promotion systems, as well as enhancing the Council capacities, including strategic planning for budget and human resources (European Commission 2015b: 12). In addition, the initial steps were needed in reducing the political influence on judges and prosecutors, especially through the ongoing procedure of reappointing state prosecutors in line with European standards (European Commission 2015b: 50). In terms of judicial accountability, the Commission outlined the necessity of improving the accountability through

24 Apart from the 2015 Montenegro Progress Report and the EU enlargement strategy 2015-2016, the European Parliament adopted the Resolution on 2015 Montenegro Progress Report on 10 March 2016. For more details: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-%2f%2fEP%2f%2fTEXT%2bTA%2bP8-TA-2016- 0092%2b0%2bDOC%2bXML%2bV0%2f%2fEN&language=EN

84 the development of a track record of implementation of codes of ethics and establishment of new disciplinary systems for judges and prosecutors (European Commission 2015b: 12).

In regard to judicial effectiveness, the Union underlined that Montenegro needed to provide further efforts in reducing the backlog of cases and particularly cases pending in the Constitutional Court (European Commission 2015b: 52). Furthermore, the Commission continuously emphasised the necessity of enforcing civil and administrative decisions by introducing a centralised system to monitor data on the recovery rates, costs and duration of enforcement proceedings carried out by the bailiffs (European Commission 2015b: 52). Last but not least, in respect to the judicial efficiency, the Commission raised concerns over reliability and consistency of statistical data and its implementation. Thus, the Union indicated that Montenegro’s judicial information system (PRIS) was not fully operational due to the lack of financial and human resources, therefore the following recommendation is directed towards resolving the capacity building issue (European Commission 2015b: 51).

Based on the newly established methodology, the Commission introduced the 2016 Montenegro Progress Report accompanied by the EU enlargement strategy and its main challenges for 2015-2016 on 9 November 2016.25 The Commission stressed that Montenegro was moderately prepared in the area of judicial functioning by noting that the candidate country demonstrated some progress in judicial reform. However, although the state demonstrated some progress in strengthening its judicial sector, providing credible track-records of implementation of reforms within the judiciary was necessary.

On the one hand, although Montenegro strengthened its legal framework through the adoption of legislation and constitutional provisions which guaranteed the judicial independence and impartiality, the Union still raised concern in regard to the political influence on the appointment of high-level judicial and prosecutorial offices. Furthermore, the Commission outlined the necessity of enhancing the capacity building of Judicial and Prosecutorial Councils through their strategic budget and human resources planning, and consequently providing the opportunity to implement the new systems for recruitment,

25 Following the introduction of Montenegro 2016 Progress Report in addition to the EU enlargement strategy and its main challenges for 2015-2016, the Parliament adopted the Resolution on the 2016 Montenegro Progress Report on 16 March 2017. For more details: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=- %2f%2fEP%2f%2fTEXT%2bTA%2bP8-TA-2017- 0094%2b0%2bDOC%2bXML%2bV0%2f%2fEN&language=EN.

85 professional assessment, promotion and disciplinary accountability (European Commission 2016b: 54).

In addition, the Union also underlined the necessity of strengthening the judicial accountability through the development of a track record of implementation of codes of ethics and of new disciplinary systems for judges and prosecutors (European Commission 2016b: 12- 13). Furthermore, the Commission highlighted the importance of introducing effective mechanisms detecting breaches of integrity, as well as the need for continuing to raise the public awareness of existing complaint mechanisms (European Commission 2016b: 55).

By the same token, the Commission noted that additional progress was made by Montenegro in the area of judicial effectiveness. Despite this advancement the EU urged that the enlargement country increases its efficiency through monitoring of backlogs and reducing the number of pending cases. In addition, although the number of backlog cases had by that time been decreased with the introduction of the bailiff system, the issue of enforcement of civil and administrative decisions remained an issue (European Commission 2016b: 57).

Concerning the judicial efficiency, the EU emphasized the necessity to further strengthen the administrative capacity by recognizing that although the JTC was allocated its own budget, it nevertheless reliant on donor support for certain specialized training. In addition, the Union raised serious concerns in regards to reliability of judicial statistics by indicating that instructions for collecting statistical data needed to be fully implemented (European Commission 2016b: 56).

Judicial independence

At the bottom-up level, following the completed screening process of Montenegrin legislations within the area of judiciary, the Commission summarized achievements, improvements and further reform recommendations into the Screening Report for Chapter 23, and submitted it on 25 December 2012 to the newly established Working Group for Preparation on Negotiations on the Accession of Montenegro to the European Union in the area of acquis related to the negotiation chapter 23 Judiciary and Fundamental Rights (hereinafter referred to as the Working Group 23), consisting of legislative, judicial and executive branches and including 5 representatives from NGO sector (Vlada Crne Gore, Akcioni plan za Poglavlje 23. pravosuđe i temeljna prava 2013: 4, hereinafter referred to as the Akcioni plan za Poglavlje 23. pravosuđe i temeljna prava 2013). Based on the single interim benchmark introduced within

86 the screening report by the Commission, the Government introduced the Action Plan for Chapter 23 – Judiciary and Fundamental Rights on 27 June 2013 almost a year after the official start of the accession negotiations.26 Correspondingly, through the introduction of the Action Plan in June 2013, Montenegro addressed the last requirement in order to officially open the process of the accession negotiation with the EU, and therefore, consequently openied the possibility to start fulfilling the recommendations stipulated within the Screening Report Montenegro for Chapter 23.

Primarily in line with the first Commission’s recommendation over judicial independence provided within the Screening Report and in particular regard to the suggestion of Montenegro amending its Constitution as to ensure independence and accountability of the judiciary, Montenegrin state authorities took several actions towards improving the legal system. First of all, the Parliament adopted the Amendments from I to XVI to the Constitution of Montenegro and the Constitutional Law for the enforcement of the Amendments to the Constitution on 31 July 2013. Additionally, the Constitution was amended in the area of judicial independence following the opinion of the Venice Commission, especially when it comes to the composition of Judicial and Prosecutorial Councils, appointment of the President of the Supreme Court, the Supreme State Prosecutor and state prosecutors, reasons for dismissal of judges and state prosecutors, and composition and method of election of judges of the Constitutional Court (European Commission 2012d: 21; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, mjera 1.1.1.1 2013: 16; Vlada Crne Gore, Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, izvještaj broj 5, decembar 2014: 3 hereinafter referred to as the Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, izvještaj broj 5, decembar 2014).

Concerning the Union’s second recommendation over the judicial independence, which is stipulated within the Screening Report and Progress Reports, particularly so in context of the recruitment process needing to be transparent and merit-based, with a single, nationwide recruitment system to be introduced, Montenegrin state bodies engaged in additional actions to further strengthen the legislative framework. Primarily, the Parliament:

26 The Action Plan overall represents the most comprehensive document so far in the area of reform of the judicial system, which means that the provided measures for realization within the plan are being identically prescribed in other national documents, such as the Judicial Reform Strategy (2014-2018), Plan for Rationalization of the Judicial Network, Strategy for the Fight against Corruption and Organized Crime, and similar.

1) adopted the Law on the Judicial Council and Rights and Duties of Judges on 12 March 2015, and along with enacted the Rules of Procedure of the Judicial Council on 20 October 2015 and the Rulebook for the evaluation of judges and presidents of courts on 9 December 2015: a) proposed legislative in terms of regulating procedure for appointment of the Judicial Council members who are not judges, b) urged for establishment of a single system of appointment of judges at the national level on the basis of a transparent and merit-based procedure, c) supported introduction of periodical evaluation of the work of judges and presidents of courts and the merit-based promotion system, and finally d) called for introduction of criteria for permanent reassignment of judges from one court to another on voluntary basis (European Commission 2012d: 21; European Commission 2013b: 36; 2014b: 36; 2015b: 12; 2016b: 12; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, mjera 1.1.2.1 2013: 16-17; Vlada Crne Gore, Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj januar – jun 2015, jul 2015: 3, hereinafter referred to as the Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj januar – jun 2015, jul 2015; Vlada Crne Gore, Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj jul – decembar 2015, januar 2016: 6-7, hereinafter referred to as the Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj jul – decembar 2015, januar 2016).27

In addition, in line with the second recommendation by the Commission over strengthening judicial independence, the Parliament also adopted the Law on Courts on 12 March 2015, with intentions to, on the one hand, further regulate conditions for appointing judges in terms of stipulating the obligation of completing mandatory training organised by the JTC following the constitutional amendments, and, on the other hand, introducing the periodical professional assessment of performance of judges and presidents of courts as a condition for their promotion (Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, mjera

27 In 2012, the Judicial Council elected 19 judges: 1 president of court and 18 judges. In 2013, the Judicial Council elected 10 judges: 1 president of court and 9 judges. In 2014, the Judicial Council elected 14 presidents of courts, while in 2015 the Judicial Council elected 97 judges: 10 presidents of courts and 87 judges (34 judges and 53 misdemeanour judges). For more details: http://sudovi.me/podaci/sscg/dokumenta/5109.pdf, http://sudovi.me/podaci/sscg/dokumenta/5107.pdf, http://sudovi.me/podaci/sscg/dokumenta/5105.pdf, http://sudovi.me/podaci/sscg/dokumenta/5103.pdf , http://sudovi.me/podaci/sscg/dokumenta/5136.pdf.

1.1.2.2 2013: 18; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj januar – jun 2015, jul 2015: 4).

Furthermore, the Parliament adopted the Law on State Prosecutor’s Office on 12 March 2015 and along with it adopted the Rules of Procedure of Prosecutorial Council on session held on 12 November 2015. These documents aim to:

a) introduce changes of procedures for appointment of members of the Prosecutorial Council in accordance with adopted constitutional amendments, b) establish a single system for appointing state and deputy state prosecutors at the national level, c) complete mandatory trainings as organised in the JTC as a condition for the election of deputy state prosecutors, d) introduce the system for periodical professional evaluation of performance of state prosecutors and their deputies within the merit-based promotion system, and finally e) improve criteria for greater voluntary mobility of deputy state prosecutors (Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, mjera 1.1.2.3 2013: 19-20; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj – januar – jun 2015, jul 2015: 4; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj – jul – decembar 2015, januar 2016: 7).28

Finally, following the constitutional amendments in the field of judiciary, the Parliament adopted the Law on Constitutional Court on 12 March 2015, thus aiming to further regulate the composition and appointment of judges of the Constitutional Court and president of the Constitutional Court, as well as adjust the functional composition of judges in making decisions upon constitutional complaints (Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, mjera 1.1.2.6 2013: 21; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj – januar – jun 2015, jul 2015: 7).

28 In 2013, the Prosecutor's Office appointed 1 state prosecutor and 26 deputy state prosecutors, while in 2014, the Prosecutorial Council appointed Supreme State Prosecutor and 15 state prosecutor holders. Furthermore, in 2015, the Prosecutorial Council appointed Major Special State Prosecutor, 8 Special State Prosecutors, and 97 state prosecutors. No available information in regards to appointment of prosecutors and deputy prosecutors for 2012 and 2016 is available. For more details: http://tuzilastvocg.me/media/files/Izvjestaj%20o%20radu%20Drzavnog%20tuzilastva%20za%202013(1).pdf, http://tuzilastvocg.me/media/files/Izvjestaj%20Tuzilackog%20savjeta%20za%202014%20god.pdf, http://tuzilastvocg.me/media/files/izvjestaj%20o%20radu%20vdt%20za%202015-compressed.pdf.

In regards to the third recommendation by the Commission over judicial independence stipulated within the Screening Report and the Progress Report, particularly so in terms of establishing fair and transparent system of promotion of judges and prosecutors along with a periodical professional assessment of judges and prosecutors’ performance, legislative and judicial branches realized a number of activities in this regard. Originally, apart from the aforementioned-adopted legislations, the Judicial and Prosecutorial Councils adopted the Rulebook for the evaluation of judges and presidents of courts on the session held on 9 December 2015. The Rulebook for the evaluation of state prosecutors and heads of state prosecutor’s office was adopted on the session held on 23 December 2015, referring to further development of a system for merit-based promotion of judges and state prosecutors and their deputies, as well as their periodical evaluation in accordance with the criteria stipulated within the judicial and prosecutorial council and courts (European Commission 2012d: 22; European Commission 2013b: 36: 2015b: 12; 2016b: 12; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, mjera 1.1.3.1, 1.1.3.2, 1.1.3.3, 1.1.3.4; 2013: 22-23; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, – polugodišnji izvještaj – jul – decembar 2015, januar 2016: 9- 10)

In reference to the fourth recommendation over judicial independence stipulated within the Screening Report, particularly so in ensuring internal independence of judges and reviewing the system of orders within the prosecution system, state bodies of Montenegro conducted a number of activities aiming to adopt new legislative measures and to further enforce current legal framework. Primarily, the Parliament adopted the Amendments to the Criminal Procedure Code on 13 August 2013, and the amendments within the Article 396a on new criminal offense of the obstruction of justice, which is to prevent unauthorized influence on judges and state prosecutors (European Commission 2012d: 22; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, mjera 1.1.5.1 2013: 28; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, – izvještaj broj 5, decembar 2014: 35-36).

Concerning the measures within the Action Plan, further activities were directed towards organizing seminars for strengthening the integrity of members of judiciary, especially the issues related to corruption, protection of image and conflict of interest (Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, mjera 1.1.5.4 2013: 29-30). Thus, during the period of 1 January 2015 – 31 December 2015, four training sessions were organized and attended by 67 participants mostly from prosecution and judicial offices, Ministry of Justice, Secretariat of

90 the Judicial Council, Commission for the Prevention of Conflict of Interest, Inspection Directorate, and Personnel Directorate and the Anti-Corruption Initiative Board (Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj – januar – jun 2015, jul 2015: 14; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj – jul – decembar 2015, januar 2016: 21). In addition, in accordance with the Annual Training Program for 2016 during the period of 1 January 2016-31 December 2016, two trainings were organized and attended by 52 participants mostly from prosecutor and judicial offices (Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj – januar – jun 2016, jul 2016: 11; Vlada Crne Gore, Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj – jul – decembar 2016, januar 2017: 11, hereinafter referred to as the Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj – jul – decembar 2016, januar 2017).

Finally, following the last of the Commission’s suggestions over judicial independence as stipulated within the Screening Report, Montenegrin authorities took additional measures to further enhance the judicial institutional framework. This was done in relation to the need of strengthening the administrative capacities and financial means within the Judicial and the Prosecutorial Councils. Primarily, in accordance with the adopted constitutional amendments and laws, President of Montenegro formulated in a decree the composition of the Judicial Council on 1 July 2014 and the Prosecutorial Council on 21 January 2014 (European Commission 2012b: 22; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, mjera 1.1.4.1, 1.1.4.2 2013: 24; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, izvještaj broj 5, decembar 2014: 26-28). In addition, further efforts were then being oriented towards strengthening capacities of Secretary of the Judicial Council through the adoption of the Rulebook on internal organization and systematization of the Judicial Council Secretariat on 16 September 2013, as well as employment of officials in this respect (Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, mjera 1.1.4.3 2013: 24; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, izvještaj broj 5, decembar 2014: 29-30; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj – januar – jun 2015, jul 2015: 8-9; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj – januar

– jun 2016, jul 2016: 6-7, hereinafter referred to as the Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj – januar – jun 2016, jul 2016).29

Given the insights of empirical descriptive analysis, it seems that the logic of Europeanization through the externally driven compliance by conditionality has remained the same in the negotiation phase due to the incompatibility of EU and domestic approaches. Following the theoretical concept within the external incentives model, it appears reasonable to assume that the declining trends in strengthening judicial independence has primarily been the reflection of downgrading tendencies in terms of the size and speed of the rewards, credibility of conditionality, and the role of veto players and the size of the adoption costs (Schimmelfennig and Sedelmeier 2005: 12-17; Gateva 2015; Sedelmeier 2011: 15; Cebelis 2016: 20).

Judicial accountability

Following the first recommendation of the Commission over strengthening judicial accountability, in particular towards amending conflict of interest rules, consequently ensuring an effective monitoring of asset declarations and cross-checking with other relevant information, Montenegrin state bodies took action primarily towards effective implementation and enforcement of the institutional framework. Originally, the Action Plan foresaw that presidents of courts, judges, state and deputy state prosecutors need to declare their assets in accordance with the Law on Prevention of Conflict of Interest, based on which the Commission for Prevention of Conflict of Interest (CPCI) introduced its report (European Commission 2012d: 22; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, mjera 1.2.3.1 2013: 34). In that sense, the control of judges and prosecutors in terms of declared assets was to be exercised in accordance with the Article 20a of the Law on the Prevention of Conflict of Interests, the Annual Plan for review of property status of public functionaries in 2015 and Methodology of risk assessment. Therefore, in the period between 1 January and 31 December 2013, out of the total number of 359 judges and prosecutors (the CPCI initiated control of 266 reports of judges and 93 prosecutors regarding their income and assets), the CPCI launched misdemeanour proceedings against 6 judges and 2 prosecutors: 4 judges were sentenced with warnings and 2 were fined, whilst procedure against a prosecutor was suspended and another was at that time still pending (Akcioni plan za poglavlje 23. pravosuđe i temeljna prava,

29 3 officials were employed in the period between the 1 July 2014 and 30 June 2016 in Secretary of the Judicial Council. In addition, 6 officials and 1 probationer were employed in the period between January and June 2016.

92 izvještaj broj 5, decembar 2014: 43-44). In addition, 478 judicial officials, 338 judges and 140 prosecutors, submitted their Reports on income and assets in the period between the 1 July and 31 December 2015 for the reporting period of previous year. In that regard, the misdemeanour proceedings were initiated against 6 judges and 1 prosecutor due to the lack of not submitting their reports within legally provided deadline in 2015: 3 cases were closed by imposing warning sanction and paying the procedure costs during the period between 1 July and 31 December 2015, whilst the remaining 4 misdemeanour proceedings against judges were not completed by the end of December 2015 (Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj – jul – decembar 2015, januar 2016: 27-29). Finally, in the period between 1 January and 31 December 2015, out of the total number of 338 judges and 140 prosecutors, the CPCI initiated control of 366 reports of income and assets of judges (higher number of controls is the result of increased number of judges who ceased their activity), and 112 reports of income and assets of prosecutors. According to the report, out of 366 judges in total 343 judges provided accurate data, while the remaining 23 provided inaccurate information. In case of prosecutors, out of 112 individuals 106 of them provided accurate data, while the remaining 6 prosecutors failed to provide accurate information in terms of income and assets. As a result, the CPCI initiated administrative and misdemeanour proceedings against 23 judges and 6 prosecutors who did not report or provide accurate and complete data (Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj – jul – decembar 2015, januar 2016: 27-30).

In reference to the second concerns of the Commission over judicial accountability provided within the Screening Report and the Progress Reports, particularly so in terms of ensuring effective monitoring of compliance with the Code of Ethics, the state authorities introduced a number of measures aiming at effective enforcement of the legal system and institutional set-up. Primarily, according to measures prescribed within the Action Plan, the Conference of Judges adopted new Code of Ethics of Judges on 22 March 2014, and the Prosecutorial Council adopted Amendments to the Code of Ethics of State Prosecutors on 20 May 2014, together with appointing the Commission for monitoring of Code of Ethics (European Commission 2012d: 22; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, mjera 1.2.4.1, 1.2.4.2 2013: 35; European Commission 2014: 37; 2015: 51; 2016: 12; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, izvještaj broj 5, decembar 2014: 52-54).

By the same token, in order to ensure effective monitoring and compliance with the Code of Ethics, further efforts were directed towards enhancing the institutional set-up through the establishment of the Commissions for monitoring compliance with the Codes of Ethics of Judges and State Prosecutors, as well as the Commission submitting semi-annual or annual reports on compliance with the Codes of Ethics to the Judicial and the Prosecutorial Councils (Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, mjera 1.2.4.4 2013: 35). In this sense, in 2012 no initiative was conducted against violation of the code of judges, while in 2013 the Commission submitted 3 initiatives, determining the violation of code of ethics of judges in 1 case. Furthermore, the Commission for monitoring acted in 8 initiatives in 2014 and 15 initiatives in 2015 and found no violation of the code in the given period. Finally, the Commission acted in 19 initiatives in 2016 and confirmed violation of the code in the case of 4 judges (3 initiatives) (Sudski Savjet 2012: 27; Sudski Savjet 2013: 22; Sudski Savjet 2014: 20; Sudski Savjet 2015: 15; Sudski Savjet 2016: 17). Furthermore, when it comes to state prosecutors, in 2015 the Commission for monitoring acted in 1 case against a deputy state prosecutor, and although the Commission determined violation of Code of Ethics it remains unclear what the final verdict in this case is. Also, in 2016 the Commission for monitoring acted in 2 initiatives against the code of violation of prosecutors and deputy prosecutors and found nobody in breach of the Code of Ethics (Tužilački Savjet 2015: 18-19).

In respect to the third suggestion of the Commission over judicial accountability stipulated within the Screening Report and the Progress Reports, particularly so in terms of reviewing the rules on disciplinary and dismissal procedures and their implementation and amendments where necessary, the state authorities of Montenegro continued to further enhance the legal framework and institutional set up. In line with the Union’s recommendations, the Parliament first adopted constitutional amendments, particularly Article 121 paragraph 3 on 31 July 2013, thus allowing for judges to be dismissed from their posts if a) sentenced for an act making it unworthy of performing judicial function, b) in case of unprofessionally and negligently conducting judicial function, and c) permanently losing the capacity to perform a judicial function in accordance with the opinion of the Venice Commission. In addition, following the constitutional amendments the Parliament adopted Laws on the Judicial Council and State Prosecutor’s Office on 12 March 2015 aiming to further regulate the competence for conducting disciplinary and dismissal procedures, the role of the Disciplinary Commission, and also introduced the principle of proportionality between the disciplinary offence and the disciplinary sanctions (European Commission 2012d: 22; European Commission 2013b: 36-

37; 2014b: 37; 2015b: 51; 2016b: 12; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, mjera 1.3.1.1, 1.3.1.2, 2013: 38; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, izvještaj broj 5, decembar 2014: 60-61; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj – januar – jun 2015, jul 2015: 19).

Furthermore, in light with the legislation changes within the disciplinary and dismissal procedures, the Judicial and Prosecutorial Councils continued enhancing the institutional framework by establishing the Disciplinary Councils on 26 May 2015 and on 14 May 2016, as well by introducing databases on procedures conducted regarding accountability of judges and state prosecutors within the PRIS in 2014 (Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, mjera 1.3.1.3, 1.3.1.4 2013: 40; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, izvještaj broj 5, decembar 2014: 66-67; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj – jul – decembar 2015, januar 2016: 34; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj – januar – jun 2016, jul 2016: 16).

Last but not least, in reference to the Union’s final suggestion over the concern of judicial accountability stipulated with the Screening Report, especially in terms of reviewing the system of functional immunity for judges and prosecutors, Montenegrin legislative, executive and judicial branches proposed a number of plans aiming to strengthen the legislation and ensure its effective implementation and enforcement. In this regard, the Parliament adopted the Laws on Judicial Council and State Prosecutor’s Office (2015) for the purpose of ensuring full accountability of judges and state prosecutors in terms of criminal offences, in particular criminal offences against their official duty. Hence, the government reports stated that there were no cases in which functional immunity of judges or state prosecutors prevented the implementation of the criminal proceedings in 2015 and 2016 (European Commission 2012d: 22; European Commission 2014b: 37; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, mjera 1.3.2.1 2013: 40; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj – januar – jun 2016, jul 2016: 16-17; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj – jul – decembar 2016, januar 2017: 19- 20).

Speaking in practical terms in respect to providing a track-record of disciplinary proceedings in judiciary, the following ensued:

a) the Disciplinary Commission imposed 5 disciplinary procedures in 2013, with these being submitted against judges and all the proceedings qualified as unfounded and untimely, and with no dismissal decision; b) in 2014, the Commission launched 3 disciplinary procedures against judges, in 1 case the judge was sentenced to reducing the monthly salary by 20%, while there were no ongoing procedures against the dismissal of judges; c) in 2015, the Commission initiated 3 disciplinary procedures, and in all three cases warnings were issued as sanctions, whereas no dismissal proceedings were initiated against judges; and d) in 2016, no disciplinary procedures or dismissals were initiated against judges (Sudski Savjet 2013: 28; Sudski Savjet 2014: 19; Sudski Savjet 2015: 15; Sudski Savjet 2016: 16). By the same token, in regard to disciplinary procedures against prosecutors: in 2013, the Disciplinary Council imposed 4 disciplinary measures against 1 state prosecutor and 3 deputy prosecutors by sentenced them for reducing the monthly salary by 20%, whilst one deputy prosecutor was dismissed; in 2014 and 2015 there were no disciplinary and dismissals procedures against prosecutor holders (Tužilači Savjet 2013: 5-6; Tužilački Savjet 2014: 18; Tužilački Savjet 2015: 19).30

The empirical descriptive framework has revealed that the mechanism of Europeanization through the externally driven EU conditionality did not produce reinforcing effect in judicial accountability in Montenegro during the negotiation phase due to the incompatibility of EU and domestic factors. Evidently, based on the theoretical framework, apart from the determinacy of conditions, the ineffectiveness of the EU conditionality that follows the strategy of reinforcement by reward primarily depends on number of the cost- benefit calculations: the size and the speed of the reward, the credibility of conditionality, and the role of veto players and the size of the adoption costs (Schimmelfennig and Sedelmeier 2005: 10-18; Sedelmeier 2011: 14-15; Cebelis 2016: 20; Gateva 2015).

30 No available information in regard to the disciplinary procedures and dismissals against prosecutors, deputy prosecutors and prosecutor holders in 2016 can be found.

Judicial effectiveness

In respect to the EU concerns over judicial effectiveness provided within the Screening Report and the Progress Report, several measures were introduced by Montenegro related to ensuring reliable and consistent judicial statistics, as well as introducing a system to monitor the length of trials.

Originally, the Judicial Council adopted Instructions on the preparation of statistical reports on the work of the courts on 15 January 2015, following the Action Plan measures primarily oriented towards setting up a reliable and consistent judicial statistics in accordance with the European Commission for the Efficiency of Justice (CEPEJ) guidelines (European Commission 2012d: 22; European Commission 2013b: 37; 2015b: 51; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, mjera 1.4.1.1 2013: 43; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj – jul – decembar 2015, januar 2016: 35-36). Additionally, in order to establish appropriate standards for the workload of judges as well as standard timeframes for proceedings for specific types of cases and/or in specific courts, Working Group within the Supreme Court suggested the Amendments to the Rulebook on orientation measures, whose main goal is to develop the study measuring the workload of judges.31 As a result, the Working Group started measuring the workload of judges from 19 January 2015 until 19 July 2015, after which the Group made recommendations adopted by the Judicial Council on 26 February 2016. However, although some progress was made, the system for effective measurement of the given workload is still not functional due to fact that the PRIS does not have the ability to realize abovementioned measures, meaning that the progress can be made once the new system in courts is finally implemented (Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, mjera 1.4.1.3 2013: 46; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, izvještaj broj 5, decembar 2014: 74-75; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj – jul – decembar 2015, januar 2016: 37; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj – jul – decembar 2016, januar 2017: 21-22).

Finally, further activities towards development of judicial effectiveness anticipated strengthening the administrative capacity by employing 3 officers in the IT department of the Secretariat of the Judicial Council in the period between of 1 January 2014 and 31 December

31 By developing the study which measures the workload of judges, the Working Group has established work methodology determining types of objects and activities in which measuring will be carried out and where appropriate pilot courts may be found.

2015 (European Commission 2012d: 22; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, mjera 1.4.1.4 2013: 48; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, izvještaj broj 5, decembar 2014: 77-79; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj – jul – decembar 2015, januar 2016: 40-41; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj – januar – jun 2016, jul 2016: 19-20).

In addition, in respect to the second recommendation of the Commission over developing judicial effectiveness as stipulated in the Screening Report and the Progress Report in terms of reviewing and rationalising the court network, ensuring sufficient funding for the efficient functioning of the entire court system, and finally reducing the existing backlog of cases, the executive and judicial branches took a number of actions in order to ensure effective implementation and enforcement of the proclaimed measures. Primarily, the Ministry of Justice adopted the Plan of rationalization of judicial network for a period 2013-2015 on 27 June 2013 in accordance with conclusions of the Analysis on the need for rationalizing the judicial network adopted in 2013. Furthermore, appropriate legal adoption consequently provided possibility for implementing measures towards rationalization of the judicial network, especially in case of merging two commercial courts into one in Podgorica (commercial court in Bijelo Polje ceased to exist), merging two special divisions of high courts into one due to centralising jurisdiction for criminal offences of organised crime, corruption, terrorism and war crimes at the Special Division of the High Court in Podgorica, and enhancing judicial capacity through the appointment of 6 special prosecutors into the Special Division for combating organised crime, corruption, terrorism and war crimes at the Supreme State Prosecutor’s Office (European Commission 2012d: 22; European Commission 2013b: 37 2014b: 37-38; 2015b: 52; 2016b: 13,14; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, mjera 1.4.2.1, 1.4.2.2.2, 1.4.2.2.3, 1.4.2.2.4 2013: 49-51; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, izvještaj broj 5, decembar 2014: 79-80; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj – januar – jun 2015, jul 2015: 24-25; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj – jul – decembar 2015, januar 2016: 42-43, 44-45).

By the same token, additional actions may be observed towards monitoring backlog of cases within PRIS and establishing Annual programmes for resolving backlog of cases at the level of all courts. In this sense, the Judicial Council is now responsible for referring judges to

98 other courts in order to solve the issue of backlog of cases, while the PRIS system provides the possibility of following both the total number of backlog of cases and uncompleted cases. Therefore,

a) on 31 December 2013 Montenegrin courts were handling the backlog of 34,859 cases: courts solved 24,014 of these, while the number of unsolved cases remained at 10,845 cases; b) on 31 December 2014 there was 132,944 cases still dealt with: courts completed 97,247 cases, while 35,697 cases remained unsolved; c) on 31 December 2015 there was the backlog of 121,651: 88,330 were solved and 33,321 remained unsolved; and finally, d) on 31 December 2016 there was the backlog of 122,850 cases: 90,537 got solved, with 32,113 remaining unsolved (Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, mjera 1.4.2.6. 2013: 53; Sudski Savjet 2013: 40; Sudski Savjet 2014: 48; Sudski Savjet 2015: 32; Sudski Savjet 2016: 37).32

Likewise, further activities towards reducing the existing backlog were oriented towards voluntary secondment of judges with less workload to a court having backlog of cases, delegating cases, monitoring work through monthly submission of reports to presidents of courts by judges on resolving of cases, and finally alternative dispute resolution (mediation, court settlement, arbitration) (Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, mjera 1.4.2.7. 2013: 53). Therefore, in regard to the voluntary secondment of judges in 2013, 8 judges of the Supreme Court were seconded to work in the Higher Court, while one judge from the Basic Court in Podgorica was transferred to Cetinje. In 2015, based on the decision of the Judicial Council, 7 judges of the Supreme Court were transferred to the Higher Court in Podgorica, while in 2014 and 2016, there were no secondments (Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj – januar – jun 2015, jul 2015: 29; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj – jul – decembar 2015, januar 2016: 48-50).

32 During 2011, courts solved 25.837 backlog cases, while the number of unsolved cases on 31 December 2011 was as high as 37,388. In addition, during 2012 courts solved 25.652 backlog cases, while the number of unsolved cases was on 31 December 2012 standing at 35.811 cases. For more details: Sudski Savjet 2011: 37; Sudski Savjet 2011: 42).

Concerning the delegation of cases, the following ensued:

a) in 2013 and 2014, 1233 cases in total were delegated, with the Higher Court in Podgorica delegating 451 cases, the Basic Court in Kotor 408 cases, and the Basic Court in Danilovgrad 305 cases; b) in 2015, in total 1292 cases were delegated: 1266 civil cases and 26 criminal cases; c) in the period between 1 January and 23 June 2016, 1617 cases were delegated: the Basic Court in Podgorica delegated 1102 cases (1054 civil and 48 criminal cases), the Basic Court in Kotor 264 cases (200 civil and 64 criminal cases), and the Higher Court in Podgorica 251 second instance civil cases (Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, izvještaj broj 5, decembar 2014: 88; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj – januar – jun 2015, jul 2015: 29; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj – polugodišnji izvještaj – jul – decembar 2015, januar 2016: 49; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj – januar – jun 2016, jul 2016: 23).

Last of all, in respect to the alternative dispute resolution mostly through mediation, court settlement and arbitration, the Amendments to the Law on Mediation were adopted on 6 June 2012. Following the strengthening of the legal system in 2013, there were in total 1769 court settlement in front of the courts, while in 2014 1269 cases in total were solved by court settlement and the remaining 353 cases by mediation (European Commission 2012d: 22; European Commission 2015b: 51; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, izvještaj broj 5, decembar 2014: 89-90). Furthermore, in 2014 the number of cases addressed through the mediation was 1722 (without labour disputes), based on which the agreement was made in 869 cases.33 The number of labour disputes addressed through mediation to the Agency for peaceful settlement of labour disputes was 89, while 1859 cases were completed through court settlement (Akcioni plan za poglavlje 23. pravosuđe i temeljna prava polugodišnji izvještaj jul –– decembar 2015, januar 2016: 48-49).

Finally, concerning the last of the Union’s recommendation over judicial effectiveness, particularly so in respect to strengthening the enforcement of judgments in civil cases,

33 In 2011, 623 mediation procedures were registered and out of which 383 mediation cases were successful. The funds that were released amounted in total to 3,772,974 Euros. For more details: Izvještaj o realizaciji mjera iz AP za 2011 godinu 2012: 7, 28. There is no available information to be found on the mediation process for 2012.

100

Montenegrin authorities decided on a number of measures aiming to further enhance the current legislative framework and enforce its information system. As already stated, the Ministry of Justice first introduced the Analysis of the bailiffs in relation to judicial enforcement in terms of efficiency and costs of enforcement proceeding in November 2013. In addition, following the adoption of the Law on Bailiffs on 31 December 2012, number of by-laws were enacted in the meantime: namely the Rulebook on number of places and official headquarters of bailiffs, the Rulebook on the form and content of the official legitimation of bailiff and deputy bailiffs and the Rulebook on programme and the manner of conducting exams for bailiffs. Furthermore, the Ministry of Justice in cooperation with OSCE organized trainings for bailiff applicants in June 2013, consequently resulting in appointment of 32 bailiffs (European Commission 2012d: 22; European Commission 2013b: 37; 2014b: 37-38; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, mjera 1.4.3.1, 1.4.3.2.1, 1.4.3.2.2, 1.4.3.2.3, 1.4.3.2.4, 1.4.3.2.5 2013: 53-55; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, izvještaj broj 5, decembar 2014: 90- 95).

Therefore, after the introduction of the bailiff system the Basic Courts in Montenegro had in total 184,107 enforcement cases (8,548 cases based on execution document and 175,523 cases based on credible document), based on which 4,451 cases were completed on the basis of execution document and 27,044 cases were completed on the basis of credible document. Furthermore, the Commercial Court in Montenegro had in total 2,602 enforcement cases after the introduction of the bailiff system (747 cases based on execution document and 1,855 cases based on credible document), consequently resulting in completion of all enforcement cases (Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj – jul – decembar 2015, januar 2016: 53-54).

Finally, further efforts towards strengthening the enforcement of judgements in civil cases were particularly oriented towards upgrading the PRIS and aiming to measure recovery rate, costs and duration of enforcement of proceedings. In this sense, the Analysis of functionality and basic software design for the work of bailiffs with the possibility of sending electronic reports to Ministry of Justice and Notary Chambers was introduced on 30 September 2015 and becoming operational by the end of December 2016. As a result, the information system has become upgraded (data for the previous years are still being inserted), consequently allowing collaboration with the Information System of Tax Administration, download of data, as well as establishment of cooperation with the Central Bank in terms of exchanging data on

101 accounts of debtors in terms of executed transactions (European Commission 2012d: 22; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, mjera 1.4.3.4 2013: 55; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj – jul – decembar 2015, januar 2016: 55; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj – jul – decembar 2016, januar 2017: 30-31).

Following the provided empirical descriptive results, it is more than obvious that the EU-driven social learning model has worked on strengthening judicial effectiveness during the negotiation phase. In this sense, following the theoretical logic of appropriateness of the EU rules and norms adoption, the likelihood of the state’s alignment with the EU demands has increased due to the legitimacy of the EU conditions and procedure, identification with the EU identity, and positive normative resonance with domestic rules (Schimmelfennig and Sedelmeier 2005: 18-20).

Judicial efficiency

Finally, in regard to the last of the Commission’s recommendations over judicial efficiency stipulated in the Screening Report and the Progress Reports, particularly so in reference to ensuring effective functioning of the JTC, experts from the EIPA Institute from Luxembourg on 15 October 2015 provided to the Centre their Analysis of the institutional needs of the Centre for education of holders of judicial functions and Proposal of job description for existing and future personnel of the Centre. This project of technical support of Luxembourg to Montenegro was entitled “multi-year consultancy project.” The abovementioned documents remain the result of institutional analysis of current status and performance of the Centre, advantages and disadvantages of current structure and functioning of the Centre, mid-term proposals to overcome existing problems, and long-term strategy for transformation of current system of education of judiciary and respective budgetary issues (European Commission 2012d: 22; European Commission: 2013b: 37; 2014b: 38-39; 2016b: 14; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, mjera 1.4.4.1 2013: 55; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, izvještaj broj 5, decembar 2014: 96).

In this sense, from the period between 15 October and 15 November 2013 the Centre conducted 6 activities of continuous education with 31 participants from the Prosecutor’s Office and 73 participants from judiciary, and also engaged in 5 activities of initial education with 21 participants of the Program of initial education. In addition, in the period between 1

102

January and 31 December 2014, the JTC organized 57 activities of continuous education with 168 participants from the Prosecutor’s Office and 29 participants from judiciary (Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, izvještaj broj 5, decembar 2014: 96).

Furthermore, the JTC organized continuously training programs on implementation of the CPC¸ the Law on Civil Procedure, the Law on Obligations, the Law on Property Relations, the Family Law, the Criminal Code and the Law on Enforcement and Security of Claims, and similar. In this respect, from the period between January and December 2015, the JTC organized 50 trainings with 241 participants from the Prosecutor’s Office, 466 representatives from judiciary, and 62 participants from other state bodies. The trainings were conducted by Montenegrin experts, regional countries, EU member states and the US. For the purpose of continuous education of judges and prosecutors a total of 248,679 EUR was spent in 2015, which was more than expected. Finally, in the period between 1 January and 31 December 2016, JTC conducted 51 trainings with 283 representatives from the Prosecutor’s Office and 469 representatives from judiciary, and for this purpose 353,369 EUR was spent in 2016.34 (Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, mjera 1.4.4.2 2013: 56; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj – januar – jun 2015, jul 2015: 32-33; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj – jul – decembar 2015, januar 2016: 55-57; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava polugodišnji izvještaj – januar – jun 2016, jul 2016: 28-29; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj – jul – decembar 2016, januar 2017: 31-33).

Lastly, the Government together with the Parliament initiated further measures towards amending the then legislative framework in order to transform the JTC into an independent and self-sustainable institution. In this sense, the Parliament adopted the Law on the Training Centre in the Judiciary and the State Prosecutor's Office on 23 September 2015, according to which the then status of the JTC as an organizational unit of the Supreme Court was transformed into an independent institution named the Training Centre in the Judiciary and the State Prosecution Office. The newly formed centre has its own steering committee, while the financial funds, according to the law, are provided from the Budget in the amount of 2% as dedicated to judiciary and the State Prosecutor’s Office (Akcioni plan za poglavlje 23.

34 The JTC spent 47,459 EUR from its budget, while the rest of 305,910 EUR was provided by international organizations.

103 pravosuđe i temeljna prava, mjera 1.4.4.4 2013: 56; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj – jul – decembar 2015, januar 2016: 57).

Last but not the least, the empirical descriptive analysis has indicated the EU’s driven social learning model based on the logic of appropriateness functioning smoothly over enhancing judicial efficiency dimension. The state’s willingness to fulfil the judicial efficiency conditions has been primarily the result of impact of both facilitating EU and domestic factors. In particular, Montenegro has demonstrated openness in aligning itself with the EU demands because it has been persuaded by the Union in: clarity of the EU rules, their degree of acceptance and legitimacy of the rule-making process; identification with the EU’s identity; and positive domestic resonance with domestic rules (Schimmelfennig and Sedelmeier 2005: 18-20).

In order to fully understand why the EU has failed to Europeanize Montenegro in the area of the judicial reform during the whole integration stage, thorough empirical analysis shall be provided in the following section of this thesis.

5.1.2 Conditional inconsistency in the EU’s approach and the state’s selective fulfilment of judicial reform demands

5.1.2.1 Pre-negotiation stage

In a nutshell, empirical evidence of judicial reform in Montenegro during the pre- negotiation phase reveals two main observations. First, this phase is characterized by the Union’s attention to improve all components within judiciary in Montenegro in respect to independence, to a lesser extent to accountability, effectiveness and finally efficiency. However, although Commission underlined the significance of addressing all judiciary reform criteria, it is clear that Union demonstrated most profound impact on enhancing judicial independence, particularly so in reducing politicization of judiciary by appointing the Judicial and Prosecutorial Councils, the Supreme Court President and the Supreme State Prosecutor by the parliament by simple majority, as well as judges of the Constitutional Court. Additionally, participation of the Minister of Justice as a voting member in the Judicial Council, strengthening the merit-based elements of the career system, and finally establishing the country-wide single recruitment system was also emphasized as such.

104

Second, Montenegro achieved overall moderate results in judiciary reform during the period of pre-negotiation phase. On the one hand, the potential candidate country demonstrated considerable improvements in strengthening its judicial effectiveness and efficiency by adopting new legislations and introducing new institutions, but on the other hand, it also outlined declining trends in enhancing judicial independence and accountability.

Visibly, the state authorities achieved overall visible progress in developing a strategic framework, strengthening legal system and establishing new institutional set-up over judicial effectiveness and efficiency, primarily by introducing new Judicial Reform Strategy 2007- 2012 (2007), followed by the Action Plan for implementation (2007) and monitoring Commission (2008), adoption of the Constitution of Montenegro (2007), Law on Judicial Education (2006), Law on protection of the right to a trial within a reasonable time (2007), Criminal Procedure Code (2009), Law on Enforcement and Security of Claims (2011), Law on Public Bailiffs (2011), Amendments to Law on Notaries (2008), and establishment of new institutions namely the Judicial Training Centre – JTC (2006), Mediation Centre (2008), Notary Chamber (2011) and Judicial Information System – PRIS and web portal of courts (2010), and the like. Thus, the empirical findings indicated rapid legislative growth together with a rising institutional development, consequently resulting in sustainable reforms in having a clear track record of implementation, primarily in reducing the backlogs of cases and introducing continuous education of judicial holders within the JTC. In this sense, it is possible to confirm the existence of legal consistency over judicial effectiveness and efficiency in pre- negotiation phase.

However, main concerns are still primarily related to issue of politicization of judiciary. Noticeably, the country made limited progress in improving judicial independence, particularly so in reducing political influence over judiciary by the parliament, respectively in appointing the Judicial Council, the Supreme Court President and the Supreme State Prosecutor by the parliament by simple majority, Constitutional Court judges, and introducing criteria and conditions for these appointment, disciplinary proceedings, and dismissal of judges and prosecutors. In particular, adoption of the new Constitution (2007)35 as well as numerous sub- constitutional provisions, namely amendments to the Law on Judicial Council (2008, 2011),

35 Particularly so in terms of appointing members of the Judicial Council (i.e. 4 judges are being elected and dismissed from duty by the Conference of Judges, 2 judges are being elected and dismissed from duty by the Parliament, 2 renowned lawyers appointed and dismissed by the President of Montenegro, and participation of the Minister of Justice), and appointment, dismissal, promotion and disciplinary proceedings of judges and prosecutors. For more details: Constitution of Montenegro from 2007.

105 amendments to the Law on Courts and the Law on State Prosecutors (2008, 2011), Rules of procedures of the Judicial and Prosecutorial Councils (2008, 2009, 2011), along with the establishment of Judicial and Prosecutorial Councils (2008, 2009) Commissions for appointment of judges (2011), Disciplinary Commissions for judges and prosecutors (2011), Commission for non-compliance of Code of Ethics of judges and prosecutors (2011), failed to address the required issues.

Apparently, the new legislative framework brought minor changes over reinforcing judicial independence, while the problem of political interference of the Parliament (and Government) over judicial sector, i.e., the issue of politicization, remained major challenge for establishing effective principles of impartiality of judiciary and overall functionality of in Montenegrin judicial system. This assertion can be particularly tested in the case of the Council’s European Partnership priorities and the Commission’s recommendations based on which Montenegro achieved the lowest level of reform results over reinforcing judicial independence. In particular, concerning the adopted constitutional provisions over composition of the Judicial Council, which was supposed to guarantee reduction of political influence by the parliament, enacted provisions unfortunately influenced the possibility of political interference of legislative bodies into judiciary through the active role of the Parliament and the President in procedures for election and dismissal of judges and lawyers, together with an active participation of the Minister of Justice in the Council. Therefore, the research evidence indicates that adopted constitutional and legislative provisions did not contain clear and precise legal safeguard measures over the procedures for appointments, dismissal, promotions and disciplinary proceedings of judges and prosecutors, nor they managed to remove established judiciary control of recruitment and career management from the parliament, consequently providing a visible risk for continuous politicization of judicial sector.

Furthermore, the continuous state policy of un-alignment over judicial independence requirements is also particularly observable in the case of the Commission’s recommendations stipulated within the 2007, 2008 and 2009 Progress Reports. More specifically, in terms of continuous and rather serious concerns of the Union over politicization of judiciary, especially through the appointment of Prosecutorial Council, appointment and dismissal of the president of the Judicial Council (i.e. president of the Supreme Court) and the State Prosecutor by the parliament, active involvement of the Minister of Justice as a voting member in the Judicial Council, and finally, unclear division of responsibility for supervision of courts between the Ministry of Justice and the Judicial Council, it is more than clear that Montenegro did not

106 manage to address the main judicial reform conditions during the pre-negotiation phase, though with no ill-effects on the country’s integration dynamics. Thus, it may be reasonable to claim based on the empirical data that the EU was not fully consistent in imposing its external pressure in order to meet judicial reform criteria. Rather, the Union introduced negatively reinforcing impact on judicial independence, especially in adoption of legislation and compliment with EU policies.

By the same token, visible inconsistency is also being observed within judicial accountability. Although the country demonstrated results in improving its legal system and institutional set-up during the pre-negotiation phase, the research findings indicate substantial shortfalls particularly in legal provisions allowing both judges and prosecutors to enjoy functional immunity from prosecution, and therefore not being subject to the criminal law, and, moreover, in insufficient monitoring of judiciary in corruption and conflict of interest cases. In this sense, concerns over insufficient number of disciplinary proceedings and dismissals against the judges and prosecutors in the period between 2010 and 2012 remained, based on which the Disciplinary Commission of judges and prosecutors launched only two disciplinary procedures against judges, consequently resulting in only a dismissal and a disciplinary warning. Therefore, the empirical evidence indicates that the EU-driven judicial reforms imposed negatively reinforcing impact on judicial accountability, therefore reflecting decline effects in legal and institutional changes.

Thus, the empirical findings reveal that Montenegro in the given period achieved visible progress in strengthening its legal framework and improving institutional set-up primarily through the reinforcement of judicial effectiveness and efficiency, and therefore, created a solid basis of legislative consistence and coherence within the legal system. However, although the country tackled certain conditions in meeting the Copenhagen criteria and aligning with the EU policies within judicial effectiveness and efficiency, the empirical evidence also outline poor and lax reform progress in addressing the profound issue of politicization of judiciary in the pre-negotiation stage. Evidently, this integration period was primarily characterized by the state’s weak results in reducing political influence over judiciary by the parliament, as a one of the key conditions for establishing functional judiciary and advancing in the EU accession process.

Hence, the empirical evidence suggests primarily that Brussels had both deficient and reinforcing influence on judiciary reform in Montenegro in general during the pre-negotiation

107 phase. Primarily, the EU-driven judiciary reforms had positive effects on judicial effectiveness and efficiency, but also rather negative effects on independence and accountability. Thus, it would be reasonable to claim that the EU external incentives resulted in mixed influence on judiciary reform in Montenegro. However, if one presumes that judicial independence and accountability remain more important criteria for the enlargement policy than effectiveness and efficiency, than this study is in position to argue that Brussels did not impose mixed impact on judiciary reform on Montenegro in the given period. Rather, the EU-driven judicial reforms resulted in negatively reinforcing impact on empowerment of judicial system in Montenegro, demonstrating at the same time inconsistency and unconcern for the integration process.

Evidently, the partial fulfilment of judicial reform demands during the pre-negotiation stage can be explained by theoretical argumentations of a number of scholars within the Europeanization studies. Originally, social learning model as a social constructivist model based on logic of appropriateness can be applicable to judicial effectiveness and efficiency dimensions. In particular, the enlargement state relied on the logic of appropriateness in adoption of acquis and alignment with the EU policies aiming to strengthen judicial capacity due to Union’s persuasion of domestic elites of legitimacy of the EU demands and process through which this entity formulated demands and promoted rules as such. In this sense, the state expressed its willingness to comply with the Union’s adaptation pressure by improving its legal and institutional framework of effectiveness and efficiency primarily due to the existence of various benefits for ruling elites chiefly in strengthening their position on the domestic level, thus positioning themselves in being seen as inevitable generator of domestic changes within international circles (Schimmelfennig and Sedelmeier 2005; Sedelmeier 2011).

On the other hand, EU external incentive model as a rational bargaining model based on logic of consequences for the EU standards’ adoption may be employed to judicial independence and accountability requirements. EU and its conditionality policy, as a central principle for observing the leverage of the EU transformative power on domestic changes through the introduction of strategy of reward-threat balance, is applicable to the case study of Montenegro, however without visible results. Noticeably, the candidate country did not comply with Union’s judicial reform requirements mostly because the benefits of received rewards (advancement in accession process, aid and technical assistance, advice and twinning etc.) did not exceed domestic adoption costs. Rather, during the pre-negotiation phase the EU benefits were not substantially stimulating and attractive for Montenegro to effectively tackle most

108 demanding judicial reform tasks (Schimmelfennig and Sedelmeier 2005; Sedelmeier 2011; Börzel and Risse 2012).

In particular, ineffectiveness of conditionality in introducing judicial independence and accountability in Montenegro largely depended on impact of external facilitating factors, namely determinacy of conditions, size and speed of rewards, credibility of threats and promises, as well as the size of the adoption costs. Primarily, although the EU has clearly defined judiciary reform as one of its key condition for membership (determinacy of conditions), insufficiently satisfactory results in reducing politicization of judiciary by the state can also be explained through the prism of credibility of the EU accession process, i.e., credibility of reward given. Evidently, lack of the credible membership perspective substantially undermined the will of the country to effectively tackle most demanding rule of law criteria, such as impartiality and accountability of judges and prosecutors, especially since Montenegro being a weak democracy with undeveloped administrative performance overall. Furthermore, the candidate country did not at any time have to face explicit (financial sanctions) or implicit (delays of the accession advancement reward) EU sanctions regardless of the state demonstrating unwillingness to address rule of law conditions. Instead, the target accession country relied on the inconsistent approach on the Union’s part in imposing judicial reform pressure. In addition, the Union’s conditional inconsistency of favouring certain international relations events, namely the active participation of great powers in the Western Balkan region, instead of imposing a pressure on alignment with judiciary reform requirements, helped to generate a habit in Montenegro to obtain the accession rewards without alignment with the EU demands (Schimmelfennig and Sedelmeier 2005; Pridham 2005; Vachudova 2005; Grabbe 2006; Sedelmeier 2011; Noutcheva and Aydin-Düzgit 2012; Gateva 2015).

Finally, it is the size of the adoption cost, i.e., reducing political influence in judiciary that remained a profound problem for overall changes within the given sector. In particular, ineffectiveness of the EU conditional policy in judiciary reform in Montenegro is also result of the domestic adoption costs i.e. the influence of veto players undermining this process. According to this theory of veto players, certain number of individual and collective actors must agree with proposed change(s) in order to alter policy changes or legal status quo. However, the number of veto players substantially determine the possibility of legal and policy changes. Given the number of veto players in Montenegro during the pre-negotiation phase being generally high (political elites, post-transition profiteers, business corruption elites, financial tycoons, etc.), it is reasonable to assume that welfare losses and power costs greatly

109 undermined the effectiveness of the EU conditional policy. The strong role of domestic veto players and widespread clientelism provided substantial impetus to deeply-rooted judicial corruption, consequently affecting quality of reform processes and transparency of decisions made by the elites due to traditional existence of patterns of gaining benefits based on maintaining personal informal contacts. Therefore, liberation of politicized judicial system by the domestic elites and other veto players entailed much greater adoption costs than the EU’s technical and financial assistance given the fact that judicial releasement also happened to create suitable conditions for the introduction of the principle of authority change for the first time in Montenegro, thus referring to introduction of democratic principle confirming the start of overall socio-political changes in the country. On the other hand, there are a number of other domestic mitigating factors which undermined the process of effective alignment with EU conditions. Primarily, it is the stateness problem, i.e., weak state institutions and lack of administrative capacities, which significantly mitigated the EU transformative power over judicial independence and accountability. In addition, strong role of semi-authoritarian leader and its active interference into internal processes and dynamics had a profound influence over the development of judicial system, especially in terms of control over the procedures for appointments, dismissal and disciplinary proceedings of judges and prosecutors (Börzel 2011; Elbasani 2013; BiEPAG 2016; Cebelis 2016; Schimmelfennig and Sedelmeier 2005 Sedelmeier 2011).

Therefore, it is possible to claim that Montenegro did not achieve concrete, sustainable results and failed to establish a convincing and credible track-records in judicial reform during the pre-negotiation stage. Although visible progress was indeed made in strengthening judicial capacity, politicization of judiciary in appointing and controlling judges and prosecutors, and also insufficient results in performance of the Disciplinary Commissions remained a matter of serious concern. As a result, the EU granted the status of candidate country to Montenegro based on partial fulfilment of judicial reform criteria by focusing mostly on empowerment of judicial effectiveness and efficiency during the pre-negotiation phase. Evidently, the Union demonstrated visible lack of interest and permissiveness in reinforcing judiciary reform in Montenegro, consequently applying the strategy of selective imposition of conditions. Thus, Montenegro was allowed to take a step forward in the process of European integration even though the state did provide further efforts in reinforcing judicial impartiality and independence as a key condition for the advancement in the EU integration process. In particular, although the potential candidate country did not timely, continuously and purposefully commit to

110 adopting the acquis and failed to align within the EU’s requirements in the given area, the overall limited progress in reforming the state’s judicial sector during the pre-negotiation stage did not however profoundly affect Montenegrin advancement in the accession process. On the contrary, the EU reaffirmed further progress of Montenegro in the integration phase even though the Commission at that time on a number of occasions outlined many visible flaws and shortfalls in strengthening Montenegrin legal and institutional framework of judges and prosecutors.

To sum it up, it might be reasonable to conclude that, since the country has failed effectively empower judicial independence and accountability in accordance with the integration dynamics, this particular behaviour may result in Montenegro not managing to properly assume obligations of the EU membership during the period of the accession negotiations in a longer perspective.

Explaining trends in partial fulfilment of judicial reform requirements during the pre- negotiation phase

Based on the provided discussion, there is one main question to be answered: How can one explain the given selective fulfilment within judicial reform during the pre-negotiation stage? More precisely, what explains the state’s achievement of visible results in meeting judicial effectiveness and efficiency criteria? But, perhaps far more importantly, why did the state demonstrate substantially limited progress in the process of Europeanization in the given period, in particular when addressing judicial independence and accountability requirements as such?

Regarding the country’s positive results over judicial effectiveness and efficiency during the pre-negotiation phase, this study recognizes two applicable explanations for overall judiciary success. The first explanation is grounded on domestic reasons, primarily on the increase of judiciary budget. After declaring its independence from Serbia in 2006, Montenegro started increasing its judiciary budget to start fulfilling rule of law criteria as being the main condition for further advancement in the EU accession process. Therefore, acceleration of the EU integration process and consequently addressing the Copenhagen political criteria stipulated within the Commission’s Opinion from 2010 had a significant effect on reinforcement of respective judicial financial funds and consequently meeting the respective requirements. Also, tackling easier judicial dimensions, for instance reducing the backlogs of

111 cases, introduction of the PRIS and introduction of the continuous training for judiciary holders by the JTC, was the least painful way for the country to start the process of judicial reform in order to achieve visible results in this area. Evidently, by addressing certain judicial dimensions, such as capacity requirements, the state was leaving an impression of a serious agent in the reform processes consequently leading up to the state advancing further in the EU integration progress.

Second and apparently more convincing explanation lays in co-relation with external factors, namely international donors. Evidently, newly established state and insufficiently developed judicial sector requested financial support from various international donors, notably from the Union and its member states, non-EU member states, and finally international organizations (UNDP and OSCE). Furthermore, improving effectiveness in the newly independent country substantially suffering from weak judicial capacities was set as judicial priority agenda by the EU and international donors. As a result, these actors aimed to build efficient judicial sector in Montenegro by providing financial support in the areas of strengthening the legal framework of judicial capacity primarily through international assistance and expertise. In addition to this, it is not rare for the Union during to pre-negotiation phase to push the country towards strengthening its institutional and structural system through the establishment of respective Judicial Council. The same situation was applicable to the case study of Montenegro: apparently, the Union was substantially and actively involved in strengthening judicial capacity through by supporting the establishment of the Judicial and Prosecutorial Councils and its Secretariats. Furthermore, legal and institutional improvement on behalf of the international donors was also accompanied by technical capacity-building and overall support of IT equipment, technical and electronic adaptation of courts through audio- visual programs, technical and technological provisions of premises of prosecutors and judges, as well as continuous and initial training programs for judicial holders. Finally, need of strengthening judicial efficiency by the international donors was also done via the establishment of information-communication technology within the courts system by means of financial support for informational equipment, various educational activities (trainings, study trips etc.), and also strengthening human capacities. Thus, it may be reasonable to assume that all these capacity-building activities granted by the Union and the international donors aimed to support and stimulate Montenegro in continuation of overall judicial reform processes by facing and tackling most difficult and demanding judicial dimensions such as judicial independence, impartiality and accountability.

112

The second question is why did the state demonstrate limited progress or declining trends in the process of Europeanization, respectively in strengthening judicial independence and accountability during the pre-negotiation phase? Also, how can we explain the existence of continuous control and politicization of judiciary by the state bodies despite constant concerns of Brussels and repeated warnings to resolve this problem?

Three main explanations exist in this regard. First, Montenegrin judicial system was characterized by rapid legislative growth and adoption and institutional transplantation during the pre-negotiation phase. The available data indicate that more than 50 laws being adopted and more than 20 institutions established in this integration phase. The EU pressure for strengthening judicial independence overloaded the state administrative structure, but judiciary as whole resulting in fast and formal adoption of legislation though insufficiently effective legal changes were being produced at the same time. In addition, most of these laws were adopted amendments to existing legislation that was supposed to introduce legal changes following the Commission’s recommendations. However, the then situation in judiciary did not reflect the state’s efforts to reinforce judicial independence. Instead, formal adoption of legislation and its inapplicable effects served only as an illusion of legal changes and their effective implementation. Therefore, one is to assume that politicization of judiciary remained as a major issue within the reform of judicial independence at that particular time. Following the domino effect, on the other hand, that artificially adopted legislation resulted in creation of more rigid judicial institutions with often only fictitious role and use. Recently established Judicial Council, financially supported by the Union and the international donors, justifies this claim. Apparently, the Judicial Council represents an artificially transplanted judicial body marred by political influence of domestic elites and being a negatively reinforcing institutional pillar, a habit that is common to most Western Balkan countries suffering from profound issues of limited statehood.

Second, lack of political will to substantially reduce politicization of judiciary is another explanation for declining trends in strengthening judicial independence and accountability. Evidently, judiciary was still under strong and profound political influence of the parliament even during the pre-negotiation phase, resulting in full control over functioning of this body. The political interference of the parliament into judicial system affected impartiality of prosecutors and judges in investigation processes, prosecution and final convictions, especially in respect to highly-ranking politicians. Also, dependency of judicial holders on politicians had a strong influence on making impartial and fair decisions, especially in terms of close family

113 members of ruling elites using their influence to gain wealth illegally, or when using state budget funds for party purposes, i.e., funding election campaigns. Furthermore, it seems fair to assume that political influence on judicial accountability had strong impact on having a track record of disciplinary proceedings and dismissals against judges and prosecutors. Low number of conducted disciplinary and dismissal procedures against judicial holders in the period between 2010 and 2012 called into question real progress in judicial accountability, taking into account the fact the judiciary reform in post-communist countries was characterized by high levels of judicial corruption.

Finally, insufficiently active role of the Union within the enlargement process during the pre-negotiation phase was reflected on declining trends in reinforcing judicial independence and accountability in Montenegro. The conditional policy of the Union played rather marginal role in reducing political influence by the parliament, particularly so in case of appointing the Judicial and Prosecutorial Councils, and also in appointing, promoting, and managing various disciplinary and dismissal proceedings of judges and prosecutors. Rather, the conditionality had more features of being a monitoring process, consequently undermining power of this mechanism and reducing it to a mere technocratic repetition of recommendations without imposing clear and credible sanction policies of non-compliance with the Copenhagen political criteria. It might be possible to assume that the Union’s conditional inconsistency lay primarily in its internal and external political problems (enlargement), and also economic and financial issues that EU was facing in those days, consequently resulting in a lack of interest over the enlargement policy and credible fulfilment of given political requirements. On the other hand, the then challenges in the region, as well as insufficiently clear membership perspective for the Western Balkans, created a suitable climate for potential candidate countries to apply a selective approach in fulfilling judicial reform criteria and successfully hide behind this tactic in avoiding to address the most difficult issues given. Considering the fact that preserving internal political stability in the region was at that time Brussel’s highest priority (rather than any fulfilment of judiciary reform requirements), Montenegro relied on the then existing permissiveness of EU policy in maintaining a steady progress in the accession process.

To conclude, the overall progress in fulfilling judicial effectiveness and efficiency requirements by Montenegro during the pre-negotiation phase was the result of both external and internal factors. However, it might be appropriate to conclude that external incentives and mechanisms, that is EU conditional policy and the international donors, were more coherent and congruent in having affected legal and institutional change through implementation and

114 enforcement. On the other hand, the regress witnessed in strengthening judicial independence and accountability during the pre-negotiation phase was primarily the result of incompatibility of both external and internal factors, that is the EU itself and domestic political leaders. In particular, insufficiently reinforced EU conditional policy, along with the lack of political will of domestic elites to effectively induce judiciary requirements, resulted in rapid adoption of formal legislative and transplantation of artificially created structures not producing effective legal and institutional changes. Therefore, based on the empirical findings in this sub-chapter it is possible to confirm that the EU-driven judicial reforms resulted in negatively reinforcing impact on empowerment of judicial system in Montenegro.

5.1.2.2 Negotiation stage

There are two main observations, the first touching on the Union recommendations regarding the issue at hand and the second one discussing domestic politics of Montenegro, to be made when deliberating the negotiation phase. First of all, the Screening Report for Chapter 23 as launched by the Commission in 2012 represents the most comprehensive analytical document examining current levels of judicial reforms in Montenegro. It provides not only suggestions over enhancing the legal system and institutional set-up over the reform of judicial sector, but, perhaps far more importantly, also highlights requirements over sustainability of reforms in having a credible-track record of implementation. In short, it underscores concrete, convincing and sustainable results in reforming Montenegrin judicial sector. In this sense, the Screening Report stresses the necessity of addressing the Union’s recommendations over improving judicial independence and impartiality, as well as judicial accountability, professionalism, competences and efficiency. However, considering various problems of judiciary reform in the process of Montenegrin integration so far, in terms of its content the Report devotes most attention to strengthening judicial independence in Montenegro. In particular, the issue of politicization of judiciary in the Parliament’s active involvement in appointing the Judicial and Prosecutorial Councils, as well as selecting judges and prosecutors, remains a huge problem for overall judiciary reform and is thus a major challenge for successful completion of the accession process itself.

Secondly, Montenegro has in terms of its domestic politics achieved insufficiently satisfactory progress in meeting judicial reform requirements during the negotiation phase. On the one hand, the candidate country has demonstrated visible progress in strengthening judicial

115 effectiveness and efficiency, while on the other hand, the state has suffered a declining trend in improving judicial independence, impartiality and accountability.

The period between 2012 and 2016 was generally characterized by the state’s advance efforts in strengthening its legal system by adopting new legislation, implementation of already adopted legislative measures, as well as further reinforcement of judicial capacities to ensure sustainability of reforms. In this sense, Montenegrin judiciary originally took advanced activities to further rationalise its court network and strengthen enforcement of judgments in civil cases. This resulted in adoption of the Plan of rationalization of judicial network for the period of 2013-2015 and realizations of the measures from the Plan (2013), and additionally in introduction of Analysis of functionality and basic software design for the work of bailiffs with the possibility of sending electronic reports to the Ministry of Justice and the Notary Chambers (2015). Furthermore, Montenegrin judiciary achieved satisfactory results in terms of further enhancing its legal system of judicial efficiency by adopting the Law on the Training Centre in the Judiciary and the State Prosecutor's Office (2015), and in additional judicial activities oriented towards developing judicial capacities by means of ensuring necessary budget funds for financing continuous trainings and organizing training programs on implementing legislation: this was, for instance, done in terms of the CPC¸ the Law on Civil Procedure, the Law on Obligations, the Law on Property Relations, the Family Law, the Criminal Code and the Law on Enforcement and Security of Claims.

However, although the state has made a solid progress over strengthening judicial effectiveness and efficiency, the empirical evidence also suggests certain declining trends in addressing these two dimensions. Firstly, no progress so far has been achieved in introducing the system of monitoring length of trails. Although the Working Group has introduced the Rulebook on orientation measures, thus foreseeing establishment of appropriate standards for workload of judges and standard timeframes for proceedings for specific types of cases and/or in specific courts, the government, however, recognized in its report that the system is not functional, saying that the measures are to be realized only after implementation of the new information system (Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – jul – decembar 2016, januar 2017: 21-22). Additionally, the empirical findings suggest that the country has achieved limited progress in ensuring reliable and consistent judicial statistics and introducing a system able to monitor length of trails. More specifically, even though the Judicial Council adopted Instructions on preparation of statistical reports on the work of courts (2015), implementation of established measures is still lacking. Noticeably, the given instructions are

116 in accordance with the CEPEJ guidelines, however, the same statistical logic is not applicable to the Judicial Council’s Annual Reports. Following the content of 2014, 2015, and 2016 Judicial Council’s annual reports, review of court performance by case type is not in accordance with the CEPEJ guidelines and adopted Instructions due to inexistence of divisions on cases and sub-cases. Instead, the Council has introduced only general information regarding Basic, Higher, Commercial, Appellate and Supreme Court(s), along with the number of backlog and already solved cases. Furthermore, Montenegrin judiciary still deals with serious issues regarding reliability and credibility of data as well as consistency of statistics due to unclear methodological framework, whilst the data on overall length of judicial procedure is still not available. More than this, although the country demonstrated valuable results in reinforcing is judicial capacities, there are still serious concerns related to insufficient budget funds for trainings. Noticeably, the new law on judicial training centre contains a legal provision on 2% of the dedicated budget for judiciary and State Prosecutor’s office to be allocated for effective functioning of the Centre. It appears that the lack of sustainable financial funds for continuous and initial training programs of the JTC still remains a substantial problem for strengthening judicial capacity even further. Given the fact that more than two thirds of the budget funds of the JTC are provided by the international donors, continuous training programs are brought into question, thus indicating the possibility for backsliding in terms of reinforcing judicial capacities. Furthermore, the issue of organizing initial training programs by the JTC still represents a major problem: due to the lack of financial sources, these programs are mostly of ad hoc nature and organized without set curricula.

By the same token, the empirical findings indicate that in general Montenegro has not achieved satisfactory results in strengthening judicial independence during the negotiation phase. Evidently, although the candidate country has introduced partial efforts in strengthening its legal system and establishing its institutional framework, there are additional concerns over sustainability of reforms through having a credible track record of implementation. In particular, in line with the requirements so as to improve judicial independence, Montenegro has demonstrated visible progress in ensuring internal independence of judges and reviewing the system of orders within its prosecution system by adopting amendments to the Criminal Procedure Code (2015) and additionally within the Article 396a on new criminal offenses, such as obstruction of justice, thus preventing unauthorized influence on judges and public prosecutors alike. In addition to this, sufficient results have been achieved by ensuring administrative capacities and effective performance of the Judicial and Prosecutorial Councils

117 through the establishment and composition of the Judicial and Prosecutorial Councils, introduction of the Rulebook on internal organization and systematization of the Judicial Council Secretariat, and staff employment within the Secretariat of the Judicial and Prosecutorial Council.

However, although Montenegro has indeed demonstrated solid results in some aspects of judicial independence, there are still concerns over politicization of Montenegrin judiciary. The empirical evidence reveals that the enlargement country has taken partial actions in terms of amending its Constitution and ensuring independence and accountability of its judiciary, especially in regards to reducing political influence of Montenegrin Parliament and the Government in judiciary. Primarily, although the constitutional provisions provide grounded measures in appointing the president of the Supreme Court, the Supreme State Prosecutor and state prosecutors, and election and dismissal of the Constitutional Court, visible flaws are particularly seen over the issue of composition of the Judicial and Prosecutorial Council. For instance, according to new constitutional provisions the Judicial Council is composed by the president of the Supreme Court, 4 judges are appointed and dismissed by the Conference of judges, 4 prominent lawyers appointed and dismissed by the Parliament, and the Minister of Justice. Evidently, new composition of the Judicial Council opens the possibility for strong political interference into judiciary. Firstly, there are no limits to political engagement of 4 elected prominent lawyers, thus allowing for these lawyers to be members of political parties. Secondly, participation of the Minister of Justice as a member of the Judicial Council remains a reason for serious concern due to the very possibility of continuous political influence on judiciary. Similar situation is observable in the case of composition of the Prosecutorial Council. According to a provision within the Law on State Prosecutor’s Office (2015), the Prosecutorial Council is staffed by the President of Prosecutorial Council (i.e., the Supreme State Prosecutor), 5 state prosecutors appointed and dismissed by the Conference of prosecutors, 4 prominent lawyers appointed and dismissed by the Parliament, and 1 representative of the Ministry of Justice. Similarly, composition of the Prosecutorial Council still leaves space for political influence of the Parliament and the Government, chiefly because current legislation does not provide limits to political participation of 4 elected lawyers in internal political processes, while at the same time active involvement of the Ministry of Justice’s representative creates space for strong political interference in this respect.

In addition, reasons for serious concern over judicial independence still exist in insufficiently defined rationale for dismissal of judges and state prosecutors. In this respect,

118 the constitutional provision does not provide enough insights in regard to dismissal of judges, except the statement that the Judicial Council dismisses judges, president of courts and lay judges (Amendment IX Point 4 2013). Furthermore, the amendments do not contain enough information over the dismissal of state prosecutors, except allegation that the Prosecutorial Council elects and dismisses holders of the State Prosecutor’s office and state prosecutors. Moreover, the constitutional provisions permit that holders of the State Prosecutor’s office and state prosecutors may be dismissed only if sentenced to unconditional imprisonment (Amendments X, XI 2013).

Furthermore, the state authorities have achieved partial results aiming to strengthen the country’s legal system over the recruitment process which needs to be transparent and merit based, and Montenegro needs to introduce a single, nationwide recruitment system. In particular, the Law on the Judicial Council and Rights and Duties of Judges, the Law on Courts, and the Law on State Prosecutor’s Office (2015) do not provide further legislative measures in order to improve judicial independence. Rather, the provisions within the Law on the Judicial Council do not contain sufficiently developed procedures for election of judges, especially from the rank of judges and lawyers, because current legislation does not define clear measures preventing political interference. Furthermore, the law contains a periodical evaluation of the work of judges but not the periodical evaluation of judges of the Supreme Court. Therefore, intangibility of judges of the Supreme Court calls into question the issues of accountability of Montenegrin judicial system due to the fact that the Supreme Court judges are not subject to control and supervision of their performance.

Finally, the Laws on Courts and on State Prosecutor’s Office do not further enhance judicial independence framework and, based on the empirical findings, this research is in position to claim that Montenegrin state bodies have not fulfilled those requirements reducing political influence on judiciary. In this sense, both laws do not have provisions particularly related to periodical professional assessment of performance of judges and presidents of courts, state prosecutors and their deputies, as a condition for their promotion, as well as conditions for the election of judges in terms of stipulating the obligation of completing mandatory trainings organised by the JTC. Furthermore, the provisions within State Prosecutor’s Office related to promotion do not possess clear and transparent merit-based promotion system.

By the same token, the research findings also reveal that Montenegro has selectively adopted measures towards strengthening its judicial accountability in the process of accession

119 negotiations. Noticeably, although the state achieved visible results in improving its legal system and developing new institutional set-up, the empirical evidence outlines serious concerns over achieving concrete and sustainable results and introducing credible track-records of implementation over accountability of judges and prosecutors. Thus, in line with strengthening the legal and institutional framework over judicial accountability, the judicial bodies primarily adopted the amendments to the Code of Ethics of Judges and Public Prosecutors (2014), along with appointed Commissions for monitoring of the Code of Ethics within the Councils. In addition, during the accession negotiations presidents of courts, judges, public prosecutors and deputy public prosecutors were continuously declaring their assets in accordance with the Law on Prevention of Conflict of Interest, based on which the Commission for the Prevention of Conflict of Interest introduced its annual reports.

However, main concerns are still related to providing clear, precise, and sustainable results, as well as having a convincing and credible track-records over the issue of violation of judges and prosecutors’ performance. Based on the Commission’s reports for monitoring of the Code of Ethics of judicial holders in the period between 2014 and 2016, out of the total number of 4 initiatives in only 3 cases 4 judges violated the code, while out of the total number of 3 initiatives in only 1 case deputy state prosecutor violated the code. Noticeably, insufficiently small number of conducted cases, alongside extremely low level of numbers of violations of the Codes of Ethics raises serious doubts over judicial accountability.

In addition, limited progress has been achieved in strengthening disciplinary and dismissal procedures and their implementation as being one of central pillars for establishing functional judicial accountability. Primarily, the constitutional amendments do not prescribe reasons for dismissal of judges in accordance with the opinion of the Venice Commission. Rather, the amendments more likely provide general provisions in terms of dismissal of judges, presidents of courts and lay judges. Therefore, it would be reasonable to assert that the current mechanisms of judicial accountability do not ensure a credible track-record of implementation, given the fact that in the period between 2014 and 2016 there were no dismissal procedures against judges and prosecutors. However, although the state bodies have not taken any concrete actions in terms of reviewing dismissal procedures, visible results can be seen in the case of strengthening legislation, particularly so in improving disciplinary proceedings. In this regard, the laws on the judicial council and the state prosecutor`s office have further enhanced disciplinary procedures by making a difference between a lighter, heavier, and serious disciplinary violations and disciplinary sanctions of judges and prosecutors. According to these

120 laws, procedure for determining disciplinary responsibility for disciplinary violations conducted the Disciplinary Councils is based on the proposal by newly established Disciplinary prosecutors.

Last but not least, the empirical evidence underlined that Montenegrin authorities have conducted partial activities in removing functional immunity and ensuring full accountability of judges and prosecutors under the criminal law. In that sense, the constitutional amendments provide the provisions of functional immunity only for holders of state prosecution office and state prosecutors by stating that they cannot be held liable for the opinion given or the decision taken while performing their duties, unless it is criminal offense. This particularly means that prosecutors are not protected by complete functional immunity and can be charged for criminal offenses done during their prosecutorial duties. In line with the introduced legal provision, official government data indicate that there have been no cases in which functional immunity of judges and prosecutors prevented the start of criminal procedures. On the other hand, the laws on the judicial council and the state prosecutor’s office do not foresee any provisions in regard to the above-mentioned issue.

Therefore, the empirical findings suggest that the Union had both reinforcing and declining trends over judiciary reform in Montenegro during the negotiation phase. In particular, the EU-driven rule of law reforms had positively reinforcing impact over strengthening judicial effectiveness and efficiency, but also negatively reinforcing impact over improving judicial independence and accountability. Based on the provided observations, it would be sensible to argue that the Union imposed negatively reinforcing impact on Montenegrin judiciary reform in the period between 2012 and 2016.

Apparently, selective addressing of Montenegrin judicial reform requirements during the negotiation phase can be explained via theoretical discussions within the Europeanization scholarship. Primarily, as it was the case with the previous integration period, the social learning model based on logic of appropriateness may be applied to judicial effectiveness and efficiency dimensions. Visibly, the candidate state relied on the logic of appropriateness in adopting the EU rules and norms in order to improve its judicial capacity due to the Union’s persuasion of domestic elites over legitimacy of the EU demands and process. As a result, the target candidate country demonstrates desire to adopt new legislation and align with the EU policies aiming to strengthen its legal and institutional efficiency framework mostly due to benefits of its political elites enhancing their position domestically, as well as in terms of

121 further strengthening the domestic elites’ international ties by positioning themselves as major actors of domestic change (Schimmelfennig and Sedelmeier 2005; Sedelmeier 2011).

On the other hand, the EU external incentive model, as a rational bargaining model using the logic of consequences for the EU rules and norms adoption, can be applicable to judicial independence and accountability conditions. In particular, the EU conditional policy as a central principle for explaining the EU impact on domestic changes by introducing strategy of reward-threat balance is applicable to the process of strengthening impartiality and accountability of judges and prosecutors but obviously without visible progress. Apparently, the enlargement state did not align itself with EU’s judicial pressure demands because the benefits of received rewards (advance in the accession process, aid and technical assistance, advice and twinning, etc.) did not exceed domestic adoption costs. Instead, the state’s cost- benefit calculation played strongly in favour of domestic refuse to comply with the Union- driven judicial reform promotion by perceiving the EU benefits insufficiently attractive (Schimmelfennig and Sedelmeier 2005; Sedelmeier 2011; Börzel and Risse 2012).

Primarily, ineffectiveness of conditionality in inducing effective judicial independence and accountability changes is the result of the lack of impact of external facilitating factors, namely the determinacy of conditions, the size and the speed of the EU rewards, the credibility of conditionality, the role of veto players and the size of domestic adoption costs. Although the Union has clearly defined judiciary reform as one of its key condition for advancement in the accession process (determinacy of conditions), limited progress in judiciary reform is also the result of the lack of credibility of the EU enlargement process itself. Noticeably, the lack of the credible membership perspective significantly mitigates the will of domestic facilitating factors in effectively implementing and enforcing judicial reform requirements, especially those demands related to reduction of politicization of judiciary, i.e., appointment of the Judicial and Prosecutorial Councils, insufficiently developed provisions related to dismissals of judges and prosecutors, credible track record over violation of judges’ and prosecutors’ performances, as well as disciplinary and dismissal procedures. In addition, the target candidate country was not faced with the effective EU conditional policy based on the principle of ‘carrot and stick’ imposing either explicit (financial sanctions) or implicit (delays of the accession advancement reward) sanctions if the state failed to tackle adequately judicial reform criteria. Instead, the target accession country relied on inconsistent Union approach in imposing its judicial reform pressure due to politically motivated gesture aimed to accelerate Montenegrin accession process by keeping at bay the influence of other international factors in the region

122

(Schimmelfennig and Sedelmeier 2005; Pridham 2005; Vachudova 2005; Grabbe 2006; Sedelmeier 2011; Noutcheva and Aydin-Düzgit 2012; Gateva 2015).

Finally, it is also the size of the adoption costs, chiefly in reducing political influence within the state’s judicial system captured by the state institutions, that remains a significant issue. As it was the case with the previous integration phase, current negotiation stage is also characterized by strong role of domestic veto players and widespread clientelism and corruption in functioning of judiciary, which means that internal judicial reform changes and decision-making processes have been deeply affected by already established patterns of behaviour in gaining material benefits through personal and informal relationships. According to the theory of veto platers, the more public and private actors opposed to tackling of given demands i.e. keeping status quo, the less likely is to expect that the target accession country fulfils the EU conditions. Generally, the number of veto players is considered to be still quite high in Montenegro. As a result, the country has consequently demonstrated declining trends in alignment with judicial independence and accountability requirements because of maintaining status quo in legal and policy changes. Taking into account current judiciary reform progress in Montenegro, of politicization in judiciary being reduced requires more profound reward than just technical and financial support or advice, and twinning in order to induce effective legal and institutional changes, especially due to deeply rooted impact of political party structures in all aspects of Montenegrin society, of course including independence and accountability of judiciary. On the other hand, dysfunctionality of the EU conditionality towards judiciary remains the result of influence of other mitigating domestic factors. Originally, it is the limited statehood issue, insufficiently developed institutional set- up and state capacities, which have significantly undermined the EU transformative power over judicial independence and accountability. Furthermore, strong role of semi-authoritarian leaders and their active interference into internal processes and dynamics has had an important influence on development of judicial system, especially in terms of control over impartiality of judges and prosecutors (Börzel 2011; Elbasani 2013; BiEPAG 2016; Cebelis 2016; Schimmelfennig and Sedelmeier 2005; Sedelmeier 2011).

Thus, it might be reasonable to argue that Montenegro has achieved overall partial results in reform of its judicial sector during the most demanding and dynamic integration phase. In particular, the candidate country has achieved satisfactory results in strengthening legal and institutional framework of judicial effectiveness and efficiency, particularly in reviewing and rationalising its court networks, enhancing the enforcement of judgements in

123 civil cases, and ensuring the effective functioning of the JTC. Additional concerns over improvements of these two dimensions still however exist, particularly in terms of introducing reliable statistics data and consistent and valid judicial statistics, as well as continuation of the continuous and initial training programs of the JTC that is to be solved by providing additional financial sources. On the other hand, the state has demonstrated limited progress towards reinforcing independence and accountability of its judicial system. More precisely, although the enlargement country has shown certain efforts over strengthening its legal system, particularly so by adopting constitutional provisions and legislations, and also by introducing new institutional set-up major concerns still exist primarily in insufficiently defined and precise legal framework of judicial independence and accountability, and its effective implementation and enforcement.

Therefore, main problems of judicial independence and accountability still exist in active involvement and appointment of members of the Judicial and Prosecutorial Council by the parliament, and participation of the Minister of Justice in the Judicial Council, violation of performance of judges and prosecutors, judicial capacity, functional immunity of judiciary, and finally dismissal procedures against judges and prosecutors.

Explaining trends in partial fulfilment of judicial reform requirements during the negotiation phase

Based on the provided elaboration of observed phenomena within the reform of judicial system in Montenegro, question to be addressed at this point is how can one explain reinforcing trends in judicial effectiveness and efficiency and at the same time declining trends in judicial independence and accountability during the negotiation phase?

Two main explanations exist in regards to the posed question. On the one hand, the reason for improving judicial effectiveness and efficiency dimensions during the negotiation stage stems in all probability from domestic reasons. Visibly, since the period when Montenegro started the most demanding and complex EU integration phase, the state bodies have substantially increased Montenegrin judiciary budget. It might be appropriate to assume that the increase of judiciary budget is primarily the result of cessation of negative effects of financial and economic crisis, and therefore continuous development of domestic economic growth. In this regard, official data indicate that financial funds of judiciary holders were increased on the number of occasions during the negotiation phase. The budget for judiciary

124 and the prosecutor’s office for 2012 was 24.9 million EUR (which represents 0.75% of Montenegrin GDP); in 2013 the figure was 26.1 million EUR (0.80% of the GDP); in 2014 it was 26.6 million EUR (0.86% of the GDP); in 2015 it was 27.1 million EUR (0.78% of the GDP); and finally in 2016 it was 34.6 million EUR (0.89% of the GDP), i.e., 26% more than the 2015 budget (European Commission 2012c: 45-46; 2013b: 37; 2014b: 38; 2015b: 51; 2016b: 56). Apparently, the same logic is applicable to functioning of the JTC. In particular, after the introduction of the law on the JTC in 2015 containing legal provisions on 2% of the given budget towards having effective functioning of the Centre, judicial capacity dimension recorded substantial improvements. Thus, in 2015 the JTC budget was allocated with 170.000 EUR, while in 2016 this budget was allocated 399.724 EUR: this is equal to 135.2% when compared to the year before (European Commission 2015b: 51; 2016b: 56).

Second, the improvement of judicial efficiency and effectiveness dimensions are also the result of the financial support of the international donors. Traditionally, the Union, EU and non-EU member states (particularly Norway), and the US have financially encouraged judicial capacity sector to continue with reforms, thus at the same time stimulating the candidate country to continue with the given reform initiatives seen as important and comprehensive. Nevertheless, the international donors have primarily supported strengthening of the PRIS, as well as enhancing its capacity through financial support of informational equipment, various educational activities (trainings, study trips, etc.), strengthening human capacities, and finally continuous trainings. However, although the financial means have been increased substantially, the impression is that judicial capacity dimension is still faced with the problem of insufficient financial resources. Evidently, the lack of financial needs for consistent development of judicial capacities is a wide-spread systemic issue, especially in terms of introduction of the system measuring and monitoring length of trials, establishment of reliable and consistent judicial statistics, as well as securing funds for continuous and initial training programs of the JTC. Thus, it might be reasonable to conclude that Montenegrin authorities need to invest in further efforts so as to ensure reliable and additional financial resources in order to tackle already stated capacity requirements.

On the other hand, the question which has aroused much interest is why the candidate country has continuously demonstrated significantly limited interest towards addressing judicial independence and accountability dimensions during the negotiation phase? In addition, how can we explain constant declining trends over improvement of independence and

125 accountability of judges and prosecutors` although the country constantly advances in the accession process?

Three explanations can be offered. Firstly, the adoption of large number of constitutional amendments, laws, and by-laws has largely mitigated the process of effective implementation and enforcement of enacted legislations related to judicial independence and accountability. Visibly, the legislative growth, especially when it comes to the introduced legislative changes over the appointment of the Judicial and Prosecutorial Councils and state prosecutors, and dismissal and disciplinary procedures of judges and prosecutors,’ requires longer implementation period and therefore results that can be measured later on. In a weak judicial system such as Montenegrin, accelerated and often late legislative growth substantially impacts not just undeveloped state administrative capacities, but chiefly the whole judicial sector and results in overload and collapse of entire legal and institutional system. As a result, the system produces formal, ineffective and artificial legislations with no power or capacity to induce legal changes and provide a credible track record of implementation. Therefore, it may be argued that the Union-driven judiciary reform pressure has caused rapid adoption of legislation, thus also accelerate strengthening of Montenegrin legal and institutional framework and ultimately leading to the process of functional transformation of the legal system being slowed down. Consequently, rapid formal adoption of legislation often results in establishment of weak judicial institutions, such as the Judicial and Prosecutorial Councils, which are by definition artificially transplanted bodies created only to meet the EU criteria. Noticeably, the Councils represent rigid and ineffective institutional set-up, and are not particularly independent in decision-making process due to insufficiently small budget and strong political influence of legislative and executive branches. Hence, they are substantially dependent judicial bodies responding to the needs and interests of Montenegrin political elites.

Further on, significant lack of political will by domestic political elites to release captive judicial system of institutions from political influence is another explanation. This explanation stems from the assumption that politicization of judiciary influences control over internal processes and trends in judicial sector, a system in which the need for the establishment of impartial and accountable judiciary consequently results in sanctioning of judicial holder(s). Therefore, it is not a rare case that the need for judge(s) to perform more independently ends in the judges’ dismissal. By the same token, profound political influence over judiciary allows the domestic elite to assume a very comfortable position of being protected from prosecution and conviction. For instance, Montenegro is the only EU candidate country in which the

126 government has not been changed since introduction of multi-party system (the end of 1980s), and corruption scandals within high-ranking government positions are quite common. It is evident, however, that the political elites do not address effectively those judicial independence and accountability requirements simply because this might jeopardize their positions of power. Therefore, one cannot but mention continuous downgrading trends over strengthening impartiality and accountability of judges and prosecutors during the negotiation stage, particularly in terms of composition of the Judicial and Prosecutorial Councils, insufficiently defined dismissal procedures for judicial holders, introduction of nation-wide recruitment system, and periodical assessments of performances of judges and presidents of courts, state prosecutors and their deputies as a condition for their promotion and election. Ultimately, the current trend in judiciary indicates a win-win situation for both judicial sector and domestic/political elites, at the same time becoming highly beneficial for both parties. On the one hand, substantially small number of highly-ranked politicians have been prosecuted and convicted, while on the other hand, negligible number of judges and prosecutors have been dismissed so far. This assertion has been confirmed in the normative analysis presented here, and it outlines that so far in the negotiation phase there have not been any dismissal procedures conducted by the Judicial and Prosecutorial Councils against judges and prosecutors.

Finally, the profound lack of interest on the part of the Union towards favouring the EU enlargement policy further represents the third explanation. Evidently, the Union’s internal and external problems, namely substantial impact of financial and economic crises, institutional reform issues, existence of political disagreements between member states about future internal and external perspectives, and finally the enlargement fatigue have had a significant impact on lack of consensus among the member states in relation to the enlargement process itself. As a result, the Union has been keeping the EU integration process open for the Western Balkans but without credible membership perspective until February 2018 when the Commission introduced a document entitled “A credible membership perspective for and enhanced EU engagement with the Western Balkans.” Also, the Union’s lack of interest for the enlargement process has had a significant influence on its conditional policy, in particular towards Montenegro as a candidate country due to Brussels having defined this mechanism as insufficiently consistent and reinforcing stemming from negatively empowering effects over judiciary reform in the negotiation phase. In particular, negatively reinforcing impact has significantly affected sustainability of judicial reforms in terms of the credible track record of implementation, especially when it comes to reducing levels of politicization of judiciary by

127 the Parliament and substantially strengthening disciplinary and dismissal procedures against judges and prosecutors.

Therefore, it is possible to claim that existence of strong politicization of judiciary is primarily the result of the Union’s permissive policy towards the domestic reformers holding responsibility for overall strengthening of independence and accountability of judiciary holders. On the one hand, this is a selective approach towards judicial reform promotion producing, on the one hand, positive reinforcing effects on judicial effectiveness and efficiency, and, on the other, negatively reinforcing effects on judicial independence and accountability. Moreover, the same approach has been limited by the domestic political elites favouring fulfilment of less complicated judicial dimensions, such as effectiveness and efficiency, to more difficult ones, i.e., independence and accountability. Evidently, the inconsistency in this regard has found its fertile ground among the domestic political elites applying a very selective approach to the fulfilment of judicial criteria while not being sanctioned by the Union at the same time.

5.1.3 Conclusion

Following the discussion presented in this chapter this study has sought to provide a clearer picture on why Montenegro has failed to Europeanize its judicial system despite the long-lasting reform activities and substantial allocation of financial resources. More precisely, the discussion on what kind of conditions/factors influenced visible decline in Montenegrin judiciary reform and how these downgrading trends can be explained has been presented here. In this respect, there are four concluding points to be made.

First of all, since the time when Montenegro started reforming its judicial system the Union has been faced with unfavourable domestic conditions, most notably in terms of the limited statehood issue. As it was the case with many post-communist transition societies, it was after gaining their independence that countries had to face their stateness issues characterized by dysfunctional judicial institutions, institutionally-entrenched corruption and clientelism, as well as weak judicial capacities. In addition, considering the ongoing judicial reform process, Montenegro has also been struggling with profound problems of politicization of its judiciary and it being controlled by the domestic political leaders. Consequently, the issue of limited statehood has influenced Montenegrin judicial sectors, a system in which

128 independence and accountability of judges and prosecutors in decision-making process remains extremely low, while monitoring judicial institutions exist only as formal and artificially transplanted bodies.

Secondly, Montenegrin post-communist legacy still plays a substantial role in functioning of its judiciary, as has been witnessed in the accession process. Thus, strong influence of domestic veto-players in this respect might explain declining trends in impartiality and accountability of judges and prosecutors being enhanced. These veto players (post- transition profiteers, business corruption elites, financial tycoons, etc.), originating from communist times and deeply infiltrated in all spheres of public policy by having established various ties with the political elites and, therefore, judiciary, have sought to consequently protect their interests. As a result, the veto players as long-time integrating factor with the ruling elites have through active party participation primarily tried to secure and protect their roles and positions from any potential prosecution, often by providing party donations and financing election campaigns. This relatively narrow circle of transitional winners or business elites, closely related to ruling parties as based on business ties or family relationships, is the one that has benefitted from public procurement affairs and tenders, privatization and urbanization etc. Inter-dependence and mutual benefits for both sides have ensured their survival and cooperation by consequently protecting both parties from potential judicial investigation and conviction. Evidently, in order to keep the illusion of the progress in the accession process, these actors have allowed partial, limited achievements in reinforcement of judicial independence and accountability but only to the extent of not having their influence and power jeopardized. Hypothetically speaking, if one assumes the situation in which the state is pressured to further empower independence and accountability of judges and prosecutors, it is reasonable to expect that the veto players would use all their influence to mitigate adoption of legislation and alignment with the given EU policies. In this sense it is possible to claim that the state institutions have been engaged in formally adopting legislation in the form of laws and amendments, but without ensuring any effective legal changes in practice. On the other hand, existence of facilitating factors, namely civil society organizations (CSOs), i.e. non- governmental organizations (NGOs) and representatives of academia, has not had any substantial impact so far on internal judicial reform in terms of processes and changes, especially when it comes to providing recommendations or monitoring the process of strengthening independence and accountability. These domestic reformers, mainly supported by the Union, have strongly advocated in favour of the process of European integration, thus

129 trying to play an active role of watchdogs in Montenegrin society. Evidently, strong ties exist between the Union and CSOs, especially in terms of the monitoring process of judicial reform progress. Number of publications, analyses, policy reports, and similar have been published by the NGOs sector and have been used by the Commission as valuable input or feedback on the current level of judicial reforms in Montenegro. However, the CSOs active role in the society does not have particular impact on the decision-making process. Reasons for their isolation in this respect may particularly be seen in potential disclosure of judicial and corruption affairs within the state bodies, thus undermining the domestic political elites in their role of reformers ensuring their country’s advance in the EU integration process. Ultimately, given the current level of politicization of judiciary, as well as the inter-dependence between the veto-players and the ruling elites, the CSOs, although financially supported by the EU and international donors, have been completely removed from judiciary processes and continue to play rather formal and marginal role in relation to monitoring judicial reform performance.

Thirdly, due to unfavourable domestic conditions the political leaders have conducted formal judicial reform activities primarily through the accelerated legislative growth and establishment of non-functional institutional set-up, and at the same time have captured Montenegrin judicial sector by means of politicization. This kind of reform implementation activities has been particularly designed and used to accelerate Montenegrin accession process, and also to present the international community with the notion that the political elites are indeed indispensable and purposeful reformers in this regard. However, direct consequence of increased politicization of judiciary is particularly observable in the case of the establishment of the Judicial and Prosecutorial Councils. The Union’s project to pressure the establishment of the Councils as an efficient way to solve independence issue has consequently resulted in introduction of rigid transplatory bodies serving special political and party interests. Nowadays Montenegro is facing the situation in which the Councils, that by the way should stand for judicial independence, are continuously and strongly influenced by both executive and legislative bodies. Moreover, internal struggle over the Councils’ control has consequently resulted in extreme politicization of these institutions due to evident absence of independence and impartiality in the decision-making processes and constant political monitoring by the Parliament and the Minister (Ministry) of Justice. Respectively, it is obvious that Montenegro has continuously faced serious issues over politicization of judiciary during the whole integration period, particularly so in terms of active involvement of the Parliament in appointing and dismissing the Judicial and Prosecutorial Councils, as well as active

130 participation of the Ministry of Justice in these particular bodies. Although the country has managed to reach certain level of strengthening its judicial independence in amending its legal and institutional framework, the progress over reinforcing judicial independence is slow and limited, with the country not achieving sustainable and merit-based results aiming to improve independent status of its judges and prosecutors. Rather, the state has used the logic of partial fulfilment of requirements on impartiality by consequently calculating and selecting which judicial reform measures are to be achieved in the given phase of the integration process.

Noticeably, the process of continuous politicization of judiciary has also affected strengthening Montenegrin judicial accountability. Although the country has demonstrated visible progress towards enhancing its legal and institutional framework, main concerns are still related to concrete and sustainable results being achieved, chiefly in terms of having a credible track-record of implementation in the area of violation of performance and dismissal of judges and prosecutors. Apparently, significantly low number of disciplinary procedures conducted against judges and prosecutors during the whole accession negotiation process has outlined that political ties still play active role in Montenegrin judiciary, consequently influencing overall accountability of judges and prosecutors. In particular, strong political ties in this regard hinder accountability through political interference on the part of both legislative and executive branches by not allowing the Councils to fairly and justly conduct disciplinary and dismissal procedures and sanction respective judiciary holders. Ultimately, captivity of judicial institutions and establishment of politically controlled judicial holders in greater extent has resulted in failure to conduct disciplinary and dismissal procedures against judges and prosecutors by the Councils as long as these are attached to the government performance.

Therefore, politicization of judiciary is explainable through substantial lack of political will of the ruling elites to functionally induce the EU rules and norms. In particular, there is an incontestable unwillingness of the political leaders to effectively comply with the acquis in suppression of political influence over judicial sector by establishing credible and impartial institutional system, consequently creating conditions for potential disappearance of the long- lasting corrupt political system that has existed in Montenegro for more than 30 years. Currently when Montenegrin institutions have been primarily captured by political influence, judicial independence is not able to play active role in overall democratization of the society and cannot foster democratic political processes in the country. Instead, the current political elites have toyed with political and legal changes, thus resulting in creating an illusion of overall internal socio-political development by fulfilling the EU political criteria. Apparently,

131 this masking (fabricating) of formal legal and institutional changes, together with Union’s inconsistent conditional policy, has allowed the current political elites to stay in power and control political interference in judiciary. In the moment when Montenegrin judicial system is being politicized, it is more than clear that judiciary in Montenegro is not able to freely and independently investigate and prosecute high-ranking political figures who have been on reasonable grounds suspected of having committed criminal offenses. Therefore, current political and legal processes are completely stagnating in the country where the ruling elites have essentially captured the country’s judicial institutions. Consequently, this situation results in survival of the current political establishment and allows for their support of those subjects (veto players) who would instead be facing legal prosecution.

The spiral of illusion of changes without concrete and sustainable results has in this regard had a profound effect on confidence of public in Montenegrin judicial independence, ultimately leading to a fall in trust in the EU and the credibility of the integration process itself. In this case, there are two possible scenarios, that is two challenges, that the current political elites are likely to face soon. The first scenario foresees complete reduction of politicization of judiciary and, therefore, independent and impartial enforcement of court proceedings. Second one assumes no change of the status quo, thus resulting in complete fall of public trust in the EU enlargement process and danger to current social peace. This would further on raise public pressure on the decision-makers to achieve concrete and sustainable results in judiciary so that the country is able to successfully complete the accession negotiation process. In any case, it is hard to expect that the domestic political elites will stay in power if political influence over judicial institutions continues to exist.

Fourthly, another tendency can be observed at the EU level and aiming to provide explanation why Montenegro has so far failed to further Europeanize its judiciary. Primarily, the Union-driven judicial reform model may be questioned in terms of its effectiveness. Noticeably, by using the monitoring approach the Union has aimed to reinforce Montenegrin judicial system by providing recommendations in strengthening judicial independence, to a lesser extent judicial accountability, and also effectiveness and efficiency. Paradoxically, although the Union has imposed pressure on accountability and independence, the EU conditional policy has been insufficiently consistent and reinforcing, and has produced negatively empowering effects over the given judiciary reform, particularly in terms of reducing politicization of judiciary by the parliament and substantially strengthening disciplinary and dismissal procedures against judges and prosecutors.

132

During the process of judicial reform in Montenegro, the Union has mostly focused on process itself rather than on results. Rather than being an effective driver in regards to judicial reform processes, the EU conditional policy has largely played the role of a monitoring actor constantly repeating the same recommendations not addressed by the candidate country. Therefore, we can talk about the Union’s lack of interest on further advancing its enlargement policy in effective promotion of the judicial reform requirements. In addition, due to Union’s insufficient interest for the enlargement process on the one hand, and maintaining internal political stability on the other hand, the EU has supported domestic political leaders in judicial reform process through the active cooperation of those agents. Noticeably, the Union has tried to play a constructive role in building effective judicial system with post-communist autocratic leaders who strongly interfere into respective judicial sector performance by using non- democratic means, respectively with those domestic agents suspected of having been involved in corruption and organized crime affairs. Thus, the EU has not only supported domestic leaders in failing to meet judicial reform criteria, but also it has helped strengthen their political position by providing them financial funds through various means of Instruments for Pre- Accession Assistance. In return, the domestic political leaders have created a sense of irreplaceability among the international circles in the reform processes consequently by tackling those judicial dimensions not questioning their survival in power.

Hence, in line with the Union’s inconsistent and insufficient conditional policy approach, it might be appropriate to discuss trends in the EU integration process of Montenegro. In particular, the research has indicated certain features inherent to the given judicial reform during the accession phase. Primarily, although Montenegro has advanced in the accession process, the country is still met by issues of politicization and accountability of its judiciary. These problems are mainly related to: the Parliament’s active participation in appointing members of the Judicial and Prosecutorial Council and state prosecutors, the reasons for dismissal of judges and prosecutors which should be included in the Constitution, introduction of a single, nation-wide recruitment system and of a fair and transparent system of promotion of judges and prosecutors (that needs to be introduced together with periodical professional assessment of judicial holders’ performance), and finally reviewing the system of functional immunity for judges and prosecutors. Secondly, the proposed model of the Union- driven rule of law reforms is being questioned particularly over strengthening judicial independence consequently by positioning itself as the main monitoring agent. In the candidate country lacking political will to address the given independence dimensions, the problem of

133 active participation of the Minister of Justice in the Judicial Council has remained problematic since 2008.

Finally, and very much in regards to perhaps a far more important trend, although the Union has indicated visible inconsistencies regarding continuous external pressure, one may witness the situation in which Montenegro has continued to advance in the EU accession process but with demonstrating reluctance to reduce political influence over its judiciary. As a result, the country’s judiciary system is still under dominant political influence although more than 10 years have passed since the beginning of the integration process. Evidently, the EU- driven rule of law reform promotion applies strategy of permissiveness in judiciary reform by at the same time allowing the candidate country to select and tackle certain judicial dimensions based on which it can advance in the given integration process. More precisely, a candidate state may recourse to a selective approach of fulfilment of judicial reform dimensions by meeting easier requirements rather than harder ones. Therefore, one might observe the tendency of a state tackling simpler judicial reform conditions, namely effectiveness and efficiency instead of more demanding once, such as judicial independence and accountability. This in essence means confronting those judicial dimensions not questioning the issue of politicization of judiciary rather than those doing so. In situations in which a country needs to reduce political interference into judiciary, a candidate state may choose to hide behind relatively solid results achieved in improving its judicial capacity, therefore addressing politicization dimension only in superficial terms. As a result, the state logic of calculations in avoiding empowerment of judges and prosecutors’ independence and accountability can reach that level where opening accession negotiations with the Union seems highly probable.

Given the provided insights, this research claims that the reform of judiciary system mostly depends on deep and inter-dependent relations between EU external incentives, domestic factors, and consequently efficiency of reform activities. More precisely, the effective EU external influence largely depends on role of domestic leaders and interest to comply with the EU requirements. In addition to mentioned factors, the way how the reforms are carried out (formal or unformal, fast-continuous) is of up-most importance for the successful transplantation of external legal and institutional systems.

As a result, following the outcomes of judicial reform in Montenegro during the pre- negotiation and negotiation phase, the candidate country has achieved insufficiently satisfactory results by introducing positive reinforcing effects over judicial effectiveness and

134 efficiency, and negatively reinforcing effects over judicial independence and accountability. If one assumes that judicial independence and accountability are more important dimensions than effectiveness and efficiency for development of rule of law, then one may claim that the process of judicial reform in Montenegro imposed by EU has failed to achieve positive reinforcing effect in the given transformation process during the integration phase. Consequently, the Union has empowered negative reinforcing effects favouring domestic factors/conditions systematically undermining the process of impartiality and accountability of judges and prosecutors.

In order to reinforce the effects of Europeanization of Montenegro, a number of changes need to be introduced. Primarily, the Union needs to provide a credible membership perspective for the Western Balkans. Following the membership perspective, the additional efforts are needed to be introduced in the Union’s active role in controlling effective fulfilment of judicial reform criteria by the Western Balkan countries in question, rather than simply adhere to merely monitoring efforts. In addition, certain changes need to be introduced at the domestic level in Montenegro as well. First, judicial institutional bodies need to be free from political influence in order to provide sustainability of reforms by having a credible track record of implementation. Second, additional actions need to be oriented towards enhancing legal changes and policy choices. In particular, legislative and executive powers should engage in further efforts and strengthen judicial independence, particularly in adopting functional legislations aiming to: 1) improve the status of the Judicial and Prosecutorial Councils and their procedures for appointment; 2) exclude participation of the Minister of Justice in the Judicial Council; 3) define concrete reasons for dismissal of judges and prosecutors and provide credible track records; 4) and establish transparent and merit-based recruitment system. Third, the decision-making process needs to be substantially revised, especially in the context of active involvement and participation of civil society organizations (NGOs, academia, etc.) in creating policies and strategies, and also in monitoring judicial processes. Evidently, inclusion of various stake-holders in the decision-making process creates favourable conditions for establishing a more transparent system, and consequently allows for a return of undermined confidence in the state institutions. Fourth, Montenegrin judiciary has been faced with serious problems of weak and insufficiently developed judicial and administrative capacities in the accession process. Thus, judicial state bodies need to invest additional efforts in employing more personnel, and, far more importantly, Montenegrin authorities have the obligation to

135 introduce permanent mandatory training and set-curricula for existing judicial holders, so that the country is able to effectively complete the accession negotiation process.

In line with the given empirical elaborations, the question that is being raised is whether interdependency of both external and internal factors is sufficient for obtaining complete insights into why the Union has not succeeded in Europeanizing Montenegro in the field of judiciary reform? This particular issue shall be addressed in the conclusion of this thesis.

136

Appendix 1: Judicial Reform in Montenegro Normative and empirical analysis of EU – Montenegro documents for a period 2006-2017

Top-down approach Bottom-up approach

Year Body/ Recommendation(s) Deadline Final Measure(s)/Activity Government`s Researcher`s Document realization evaluation36 evaluation37 8.11. 2006 MNE 1-Establishment of strategy of 2007 June 2007 1.1-Judicial Reform Strategy Realized Realized 2006 Progress judicial reform; 2007-2012 (JRS); Report 2-Political influence of 2007 27.12.2007 2.1-Action Plan for 2006-2007 Parliament in judiciary; Implementation of the Justice EU Reform Strategy 2007-2012; enlargement strategy 2008 27.3.2008 2.2-Commission for the - Implementation of the Action European Plan; Commission 3-Strengthening legislative and 27.4.2006 3.1-Law on Judicial Education; Realized Realized institutional framework of judicial efficiency and effectiveness; 17.1. Council of the European Partnership 17.5.2007 Action Plan for Implementation Realized Partly Realized 2007 EU of the European Partnership; Short-term 1.1-Adoption 2007-2009 19.10.2007 1.1.1-Constitution; Realized Partly Realized priorities of new Constitution; 1.2-Finalize 2007-2009 June 2007 1.2.1-JRS; Realized Realized plans to reform

36 In accordance with defined methodological framework, based on the normative analysis the evaluation of the state bodies’ work is divided in 3 categories: realized, semi- realized and unrealized measures and/or activities. 37 In accordance with defined methodological framework, based on the empirical analysis the evaluation of the state bodies` work is divided in 3 categories: realized, semi- realized and unrealized measures and/or activities.

137 the judicial 27.12.2007 1.2.2-Action Plan for system; Implementation of the JRS;

28.3.2008 1.2.3-Commission for the Implementation of the Action Plan; 1.3-Remove 2007-2009 1.3.1-Measure has not been Unrealized control of achieved; recruitment and career management from Parliament and establishment of transparent procedures; 1.4-Sustainable 2007-2009 2.4.2008 1.4.1-Amendments on the Law on Realized Realized financing for Courts; judicial system; 27.6.2008 -Amendments on the Law on State Realized Realized Prosecutors;

15.6.2007 -Law on salaries and other income Realized Realized of holders of judicial office and the rules and procedure of the state prosecutor`s office; 1.5-Provide 2007-2009 27.6.2008 1.5.1-Amendments on the Law on Realized Realized guarantees to State Prosecutors; strengthen the autonomy and 15.6.2007 -Law on salaries and other income Realized Realized efficiency of the of holders of judicial office and the prosecution rules and procedure of the state system, prosecutor`s office; including budget issues; 2.1- 2007-2009 2.4.2008 2.1.1-Amendments to the Law on Realized Partly Realized Rationalization Courts; and

138

modernization 27.06.2008 -Amendments on the Law on State Realized Realized of court system; Prosecutors;

18.8.2009 -Criminal Procedure Code (CPC); Realized Realized

13.12.2007 -Law on protection of the right to Realized Realized a trial within a reasonable time; 3.1-Training of 2007-2009 IQ2007 3.1.1-Published the brochure Realized Realized judges, “Law on Judicial Education” prosecutors and court staff and IQ2007 -Adoption of the Training Realized Realized strengthening Program for Judges and JTC; Prosecutors and Associates for 2007;

IVQ2007 -Implementation of the Training Realized Realized Program for Judges and Prosecutors and Associates for 2007;

Medium- term 1.1-Completion 2012 2012 1.1.1-Implentation of JRS; Realized Partly Realized priorities of strategic framework of judiciary; 1.2- 2012 2012 1.2.1-Implementation of JRS; Realized Partly Realized Implementation of reform plans; 2009 1.9.2011 1.2.2-Implementation of CPC; Realized Realized 1.3- IV 2008 2.4.2008 1.3.1-Amendments to the Law on Partly Realized Partly Realized Implementation Courts; of transparent recruitment and IV 2008 27.6.2008 1.3.2-Amendments to the Law on Partly Realized Partly Realized career State Prosecutors; management procedures; 2.1-Upgrading IIIQ 2008 27.6.2008 2.1.1-Amendments to Law on Realized Realized the sources of State Prosecutors;

139

prosecutor 2012 2011 -Implementation of CPC; Realized Realized system; 2012 2012 2.1.2-Implementation of JRS; Realized Partly Realized 3.1-Functioning Continuously Continuously 3.1.1-Engagement of foreign Realized Realized of JTC and experts in education of judges and implementation prosecutors; of IT strategy; 2012 2012 3.1.2-Implementation of Judicial Realized Partly Realized Strategy Reform which contains special IT strategy; 3.2-Upgrading 2012 2012 3.2.1-Implentation of JRS; Realized Partly Realized the source of judicial system; 2010 2011 3.2.2-Establishment of an audio- Partly Realized Partly Realized video recording flows of court proceedings in all courts;

6.11. 2007 MNE 1.1-Political influence of the 2007 19.10.2007 1.1.1-Contitution; Realized Partly Realized 2007 Progress Parliament over judiciary Report through the appointment of IQ 2008 28.2.2008 -Law on Judicial Council; Realized Partly Realized Judicial Council; 2007-2008 EU I-IIIQ 2008 19.4.2008 1.1.2-Establishment of Judicial Partly Realized Partly Realized Enlargement 30.8.2008 and Prosecutorial Councils; Strategy - European 1.2-Appointment of IQ 2008 27.6.2008 1.2.1-Amendments to the Law on Realized Unrealized Commission Prosecutorial Council by State Prosecutors; parliament;

1.3-Appointments, promotions, 2007 19.10.2007 1.3.1-Adoption of Constitution; Realized Realized disciplinary proceedings and dismissal of judges and IQ 2008 28.2.2008 1.3.2-Law on Judicial Council; Realized Partly Realized prosecutors; IIIQ 2008 2.4.2008 -Amendments to the Law on Realized Partly Realized Courts; I-IIIQ 2008 29.3.2008 -Rules of Procedure of the Judicial Realized Partly Realized Council; -Commission for appointment, and 36 judges elected;

140

IQ 2008 27.6.2008 1.3.3-Amendments the Law on Realized Partly Realized State Prosecutors; I-IIIQ 2008 1.9.2009 -Rules of Procedure of the Realized Partly Realized Prosecutorial Council; -Commission for appointment elected;

2.1-Serious concern of backlog IIQ 2008 7.8.2008 2.1.1-Law on Obligations; Realized Realized in both civil and criminal cases; Continuously Continuously 2.1.2-Implementation of the Law Realized Realized on protection of the right to a trial within a reasonable time; -Establishment of the records of claims for fair satisfaction in the Supreme Court provided special provision in a budget for paying a fair amount of satisfaction;

IQ 2008 2008 2.1.3-Draft on Amendments to the Realized Unrealized Law on Notaries; -Rulebook on the number of places and offices of the notaries; -Rulebook on the method and program for the notary examination;

IQ 2008 2008 2.1.4-Establishment of the Realized Realized Mediation Centre;

IQ 2008 and Continuously 2.1.5-Annual framework for Realized Realized continuously dealing with backlog cases established; -1.500 cases from the Basic Court in Podgorica were delegated to other courts that are less burdensome with backlog of cases

2.2-Insufficient career IQ 2008 28.2.2008 2.2.1-Law on Judicial Council; Partly Realized Unrealized development rules;

141

I Q 2008 27.6.2008 -Amendments on the State Partly Realized Unrealized Prosecutors; III Q 2008 2.4.2008 -Amendments to the Law on Partly Realized Unrealized Courts; I-IIIQ 2008 29.3.2008 -Rule of Procedures of the Judicial Partly Realized Unrealized Council;

2.3-Prosecutors realised in IQ 2008 20.3.2009 2.3.1-Law on State Property; Partly Realized Partly Realized representing the state in property and legal matters; 5.11. 2008 MNE 1.1-Political influence of the 1.1.1-Measure has not been Unrealized 2008 Progress Parliament through the achieved; Report appointment of Prosecutorial Council; 2008-2009 EU Enlargement 1.2-Risk of judicial 1.2.1-Measure has not been Unrealized Strategy independence through the achieved; - participation of the Ministry of European Justice as voting member in the Commission Judicial Council;

2.1-Improvement Code of IVQ 2008 26.7.2008 2.1.1-Code of Ethics of Judges; Realized Realized Ethnic; IVQ 2009 2009 2.1.2-Commission for monitoring Realized Realized the implementation of the Judicial Code of Ethics within the Judicial Council;

Continuously Continuously 2.1.3-No violation of the Code of Realized Realized Ethics by the judges and prosecutors and deputy prosecutors in 2008 and 2009;

3.1-High number of pending IQ 2008 15.8.2008 3.1.1-Amendments to the Law on Realized Realized cases and excessively lengthy Notaries; procedures; Continuously Continuously 3.1.2-Annual framework Realized Realized programs of backlog cases;

142

IVQ 2008 December 3.1.3-Analysis of implementation Realized Partly Realized 2008 of the Law on Enforcement Procedure;

4.1-Conducting properly initial Continuously Continuously 4.1.1-Focus on continuous Realized Realized and continuous training trainings on CPC and European programmes; Convention of Human Rights; 14.10. 2009 MNE 1.1-Appointment of 1.1.1-Measure has not been Unrealized 2009 Progress Prosecutorial Council and achieved; Report appointment and dismissal of State Prosecutor by parliament; 2009-2010 EU Enlargement 1.2-Unclear division of 1.2.1-Measure has not been Unrealized Strategy responsibility for supervision achieved; - of the courts between the European Ministry of Justice and Judicial Commission Council;

1.3-Participation of the 1.3.1-Measure has not been Unrealized Minister of Justice as a member achieved; of the Judicial Council;

1.4-Election and dismissal of 1.4.1-Measure has not been Unrealized the president of the Judicial achieved; Council by parliament;

2.1-Inefficient judicial IIQ 2009 2010 2.1.1-Law on Enforcement and Partly Realized Unrealized enforcement procedures and Security of Claims is in the lengthy court procedures; parliamentary procedure;

2.2-Allocation of cases in Continuously Continuously 2.2.1-PRIS has been introduced in courts which needs to be 2010 as a complete and functional Realized Realized implemented and information system within the computerized; judicial bodies;

2.3-Improvement of reliability IQ 2010 17.3.2010 2.3.1-Law on Information Realized Realized of court data as well as the Security; introduction of the

143

computerised case management system in all I-IIQ 2008 2010 2.3.2-Introduction of PRIS in the Realized Partly Realized courts; state prosecutors' offices;

Continuously Continuously 2.3.3-Centralization of data, the Realized Partly Realized entry of existing data, and their regular update;

Continuously Continuously 2.3.4-Reduction of backlog of Partly Realized Partly Realized cases in the State Prosecutors` offices;

3.1-Conducting training Continuously 13-14.9.2010 3.1.1-Organized topic entitled Realized Realized programmes in order to prepare “Implementation of the new CPC, the prosecution service for its amendments to CPC and role in the pre-trial procedure challenges in practice”; under the new CPC; 9.11. Commission 17.2.2011 1.Action Plan of Monitoring 2010 Opinion on Recommendations from the Montenegro`s Opinion of the European application Commission; for - membership Ministry of Foreign Affairs and of the EU European Integration

2010-2011 1.3.2012 2.Annual Report on Realization EU of Measures from the Action Enlargement Plan for the Implementation of Strategy the Judicial Reform Strategy - 2007-2012 for 2011; European - Commission Government of Montenegro

1.1-Appointments of members IIQ 2011 3.6.2011 1.1.1-Draft amendments to the Realized Unrealized of the judicial and prosecutorial Constitution; councils and of state prosecutors, and reinforcement IQ 2011 4.8.2011 1.1.2-Amendments to the Law on Realized Realized of the independence, autonomy Judicial Council; of judges and prosecutors;

144

30.11.2011 -Rules of Procedures of the Realized Realized Judicial Council; 15.7.2011 -Commission for appointment of Realized Realized judges;

IIQ 2011 4.8.2011 1.1.3-Amendments to the Law on Realized Realized State Prosecution Office; 4.11.2011 -Rules of Procedure of the Realized Realized Prosecutorial Council;

2.1-Reinforcement of the IIQ 2011 4.8.2011 2.1.1-Amendments to the Law on Realized Realized accountability of judges and Judicial Council; prosecutors; 28.4.2011 -Disciplinary Commission; Realized Realized 10.10.2011 -Commission for monitoring Realized Realized implementation of the code of ethics for judges;

IIQ 2011 4.8.2011 2.1.2-Amendments to the Law on Realized Realized Courts;

IIQ 2011 22.7.2011 2.1.3-Amendments to the Law on Realized Realized State Prosecution Office; 2011 -Disciplinary Commission; Realized Realized 2011 -Commission for monitoring Realized Realized implementation of the code of ethics for prosecutors;

3.1-Reinforcement of the IIQ 2011 27.7.2011 3.1.1-Law on Enforcement and Realized Realized effectiveness of judges and Security of Claims; prosecutors; IIQ 2011 22.06.2011 -Amendments to the CPC; Realized Realized

IVQ 2008 29.04.2011 3.1.2-Appointement of notaries Realized Realized and establishment of Notary Chamber;

Continuously Continuously 3.1.3-Effective alternative Realized Realized settlement of disputes;

145

Continuously Continuously 3.1.4-Annual programs for solving Realized Partly Realized backlog of cases;

4.1-Reinforcement of the Continuously 1.1.2010 4.1.1-Judicial Information System Realized Partly Realized efficiency of judges and (PRIS) started being operational; prosecutors; Continuously Continuously 4.1.2-Established the web portal of Realized Realized courts: www.sudovi.me;

Continuously Continuously 4.1.3-Annual training program of Realized Partly Realized continuous education of judges and prosecutors; 12.10. 2011 MNE 25.4.2012 1.1-Annex to Report to 2011 Progress European Commission on Report Montenegro’s Progress for 2012 – for a period of 1 September 2011-2012 EU 2011 to 25 April 2012; Enlargement Strategy 6.9.2012. 1.2-Annex to Report to - European Commission on European Montenegro`s Progress for 2012 Commission – for a period of 25 April 2012- 1 September 2012; 29.06. Resolution - 2012 which refers Ministry of Foreign Affairs and to 2011 European Integration Progress Report on Montenegro 1.1-Appointment of the 28.5.2012 1.1.1-Draft Amendments to the Realized Unrealized - Supreme Court President and Constitution of Montenegro; European the Supreme State of the -Draft of Constitutional Law for Parliament Prosecutor by the parliament by the Implementation of the simple majority; Amendments to the Constitution -Appointment of the judges of Montenegro; Constitutional Court in line with European standards;

146

-Limited mandates of the Supreme State Prosecutor and the Heads of Prosecutors` Offices remain problematic;

1.2-Merit-based elements of the career system need to be IIQ 2011 30.11.2011 1.2.1-Rules of Procedure of the Realized Partly Realized substantially strengthened and Judicial Council; a country-wide single 19.9.2011 -Commission for the written test Realized Partly Realized recruitment system remains to for the candidates who have been be established; appointed as judges for the first time - Judicial Council on 21 February 2012 appointed 1 judge in Constitutional Court, 4 judges of Higher Courts, and 1 judge in Basic Court;

IIQ 2011 4.11.2011 1.2.2-Rules of Procedure of the Realized Partly Realized Prosecutorial Council; -Introduced the proposal for the appointment of 3 state prosecutors and 9 deputy state prosecutors in 2012 based on new criteria within the recruitment system; 2.1-Insufficient monitoring of Continuously 2012 2.1.1-Disciplinary Commission Realized Partly Realized judiciary in corruption and launched a disciplinary procedure conflict of interest; against 1 judge, and only 1 disciplinary measure/warning was imposed; -No disciplinary procedures have been launched against prosecutors;

2.2-Comprehensive protection 2.2.1-Measure has not been Unrealized of judges and prosecutors achieved; within the functional immunity;

147

2.3-Devoting more attention to Continuously Continuously 2.3.1-Introduction of the website: Realized Realized the issue of publicity of court www.sudovi.me rulings;

3.1-Weak enforcement of civil IIQ 2009 23.11.2011 3.1.1-Law on Public Bailiffs; Realized Realized decision and long duration of -Rules of Procedure on number of court proceedings; seats and official headquarters of public bailiff; -Rules of Procedure of the form and content of official legitimation of public bailiffs and deputy public bailiffs; - Rule of Procedure on the work of public bailiff;

3.2-Streamlining the courts 3.2.1-Measure has not been Unrealized system; achieved;

4.1-Training of judges and 4.1.1-Measure has not been Unrealized prosecutors i.e. the lack of achieved; permanent mandatory courses and set curricula; 22.5. Report from 1.1-De-politicised and merit- 8.3.2012 1.1-Annex to the European 2012 the based appointments of Commission's Spring Report on Commission members of the judicial and meeting the 7 key priorities for to the prosecutorial councils and of the period 1 September 2011 - 1 European state prosecutors as well as the March 2012; Parliament independence and autonomy of - and the judges and prosecutors; Ministry of Foreign Affairs and Council on European Integration Montenegro`s 1.2-Reinforcement of Progress in accountability of judges and Note: all the reform activities the prosecutors; conducted by the Montenegrin Implementati state bodies in 2012 are presented on of 1.3-Reinforcement of in documents: Reforms effectiveness of judges and -Annex to Report to European - prosecutors; Commission on Montenegro`s European Progress for 2012 – for a period of Commission

148

1.4.-Reinforcement of 1 September 2011 to 25 April efficiency of judges and 2012; prosecutors; -Annex to Report to European Commission on Montenegro`s Progress for 2012 – for a period of 25 April 2012- 1 September 2012; 12.11. Screening 27.6.2013 1.Action Plan for Chapter 23 2012 Report Judiciary and Fundamental Montenegro Rights; Chapter 23 – Judiciary and 1.1-Montenegro should amend July 2013 31.7.2013 1.1.1-Amendments from I to XVI Realized Partly Realized fundamental its Constitution ensuring to the Constitution of Montenegro right independence and and the Constitutional Law for the - accountability of the judiciary: enforcement of the Amendments European to the Constitution; Commission -The Judicial Council and the Prosecutorial Council should 10.10. 2012 Progress be composed by at least 50% of 2012 Report on members stemming from the Montenegro judiciary and selected by the Councils; The EU Enlargement -Prosecutors should not be Strategy appointed by the Parliament; 2012-2013 - -Reasons for dismissal of European judges and prosecutors should Commission be included in the Constitution;

28.04. Resolution on 1.2-The recruitment process September 12.3.2015 1.2.1-Law on the Judicial Council Realized Partly Realized 2013 the 2012 needs to be transparent and 2013-October and Rights and Duties of Judges; Progress merit based, and introduction 2014 Report on of a single, nationwide 1.2.2-Law on Courts; Realized Unrealized Montenegro recruitment system; - 1.2.3-Law on State Prosecutor`s Realized Unrealized European Office; Parliament 1.2.4-Law on Constitutional Realized Realized 16.10. Court;

149

2013 2013 Progress November- 20.10.2015 1.2.5-Rules of Procedure of the Realized Realized Report on December Judicial Council; Montenegro 2014 12.11.2015 1.2.6-Rules of Procedure of Realized Realized The EU Prosecutorial Council; Enlargement Strategy 1.3-A fair and transparent September 12.3.2015 1.3.1-Law on the Judicial Council Realized Partly Realized 2013-2014 system of promotion of judges 2013-October and Rights and Duties of Judges; - and prosecutors needs to be 2014 -Law on Courts; Realized Partly Realized European established together with a -Law on State Prosecutor`s Office; Realized Partly Realized Commission periodical professional assessment of judges and 2015 and 9.12.2015 1.3.2-Rulebook for the evaluation Partly Realized Partly Realized 8.10. prosecutors' performance; continuously of judges and presidents of courts; 2014 2014 Progress Report on IQ 2015 and 23.12.2015 1.3.3-Rulebook for evaluation of Partly Realized Partly Realized Montenegro continuously state prosecutors and heads of state prosecutor`s office; The EU Enlargement 1.4-Ensure internal September 13.8.2013 1.4.1-Amendments to the Criminal Realized Realized Strategy independence of judges and 2013 Procedure Code; 2014-2015 review the system of orders - within the prosecution European system; Commission 11.03. 2015 1.5-Sufficient administrative IQ 2015 1.7.2014 1.5.1-Composition of the Judicial Realized Realized capacities and financial means Council; Resolution on need to be ensured to the the 2014 Judicial and the Prosecutorial IQ 2015 21.1.2014 1.5.2-Composition of the Realized Realized Progress Councils to effectively perform Prosecutorial Council; Report on their tasks; Montenegro IIIQ 2014 16.9.2013 1.5.3-Rulebook on internal Continuously Partly Realized - organization and systematization Realized 10.11. European of the Judicial Council Secretariat; 2015 Parliament -Employment of 3 officials;

2015 Progress September January 2013- 1.5.4-Secretary, 6 officials and 1 Realized Realized Report on 2014 and June 2016 probationer were appointed within Montenegro continuously

150

the Secretariat of the Prosecutorial The EU Council; Enlargement Strategy 2.1-Amend "conflict of Continuously Continuously 2.1.1-Declaration of assets of the Continuous Realized 2015-2015 interest" rules, ensuring that presidents of courts, judges, public Realization - there is an effective monitoring prosecutors and deputy public 10.03. European of asset declarations and cross- prosecutors declare in accordance 2016 Commission checking with other relevant with the Law on Prevention of information; Conflict of Interest; Resolution on the 2015 Progress 2.2-Ensure effective March 2014 22.3.2014 2.2.1-Code of Ethics of Judges; Realized Realized Report on monitoring of compliance with Montenegro the code of ethics; - March 2014 20.5.2014 2.2.2-Amendments to the Code of Realized Realized 9.11. European Ethics of Public Prosecutors; 2016 Parliament -Commission for monitoring of Code of Ethics was appointed; 2016 Progress Report on Continuously Continuously 2.2.3-Commissions for monitoring Continuous Partly Realized Montenegro compliance with the Codes of realization Ethics of Judges and Public The EU Prosecutors, and the Enlargement Commission`s submission of the Strategy semi-annual or annual reports on 2016-2017 compliance with the Codes of - Ethics to the Judicial and the European Prosecutorial Councils; Commission 2.3-Review rules on July 2013 31.7.2013 2.3.1-Amendments from I to XVI Realized Unrealized disciplinary and dismissal to the Constitution of Montenegro; procedures and their September 12.3.2015 2.3.2-Law on the Judicial Council Realized Realized implementation and amend 2013-October and Rights and Duties of Judges; where necessary; 2014 -Law on State Prosecutor`s Office; Realized Realized

IQ 2015 26.5.2015 2.3.3-Disciplinary Council within Realized Realized the Judicial Council, 14.5.2015 -Disciplinary Council within the Realized Realized Prosecutorial Council;

151

January 2014 2014 2.3.4-Databases on procedures Continuous Realized conducted regarding the realization accountability of judges and public prosecutors within the PRIS;

2.4-Review the system of September 12.3.2015 2.4.1-Law on Judicial Council and Continuous Partly Realized functional immunity for judges 2013-October Rights and Duties of Judges and realization and prosecutors; 2014 Law on the State Prosecutors` Office;

Continuously March 2016 2.4.2-Annual report on Continuous Unrealized performances of the Judicial realization Council and overall conditions within the judiciary for 2015;

3.1-Ensure reliable and September 15.1.2015 3.1.1-Instructions on the Partly Realized Partly Realized consistent judicial statistics and 2013-IIQ preparation of statistical reports on introduce a system to monitor 2015 the work of the courts; the length of trials; September 26.2.2015 3.1.2-Amendments to the Partly Realized Unrealized 2013-IIQ Rulebook on orientation measures 2016 presented by the Working Group which foreseen establishment of appropriate standards for the workload of judges and standard timeframes for proceedings for specific types of cases and/or in specific courts;

Continuously Continuously 3.1.43-3 officers employed in in Partly Realized Partly Realized the IT department of the Secretariat of the Judicial Council;

152

3.2-Review and rationalise the June 2013 27.6.2013 3.2.1-Plan of rationalization of Realized Realized court network and ensure judicial network for a period 2013- sufficient funding for the 2015; efficient functioning of the entire court system. Further 2013-2015 2013-2015 3.2.2-Realization of measures Realized Realized reduce the existing backlog, from Plan of rationalization of especially as regards civil judicial network for a period 2013- cases; 2015;

Continuously Continuously 3.2.3-Monitoring backlog of cases Continuous Realized within PRIS and establishing realization Annual programmes for resolving backlog of cases at the level of all courts;

Continuously Continuously 3.2.4-Activities towards reducing Continuous Partly Realized existing backlog of cases realization (voluntary secondment of judges, delegating cases, improving and controlling the work of delivery and enforcement service, and alternative dispute resolution etc.

Continuously 6.6.2012 3.2.5-Amendments to the Law on Realized Realized Mediation;

3.3-Strengthen the enforcement October 2013 Nov 2013 3.3.1-Analysis of the bailiffs in Realized Realized of judgements in civil cases; relation to judicial enforcement in terms of efficiency and costs of enforcement proceeding;

January 2014 2014 3.3.2-Conducted practical actions Realized Realized in accordance with the Law on Enforcement and Security of Claims and the Law on Bailiffs in order to start operating of bailiffs and take enforcement cases from the jurisdiction of courts;

153

22.06.2013 -Regulation on tariff of bailiffs; January 2016 -Regulation on amendments of the regulation on the tariff of bailiffs;

IVQ 2015 30.9.2015 3.3.3-Introduced Analysis of Realized Realized functionality and basic software design for the work of bailiffs with the possibility of sending electronic reports to Ministry of Justice and Notary Chambers;

4.1-Ensure effective IVQ 2013 15.10.2015 4.1.1-Established Analysis of the Realized Realized functioning of the Judicial institutional needs of the Centre Training Centre; for education of holders of judicial functions and Proposal of job description for existing and future personnel of the Centre;

Continuously Continuously 4.1.2-Organized training programs Continuous Realized on implementation of CPC¸ Law realization on Civil Procedure, Law on Obligations, Law on Property Relations, Law on Enforcement and Security of Claims etc.;

2014-2015 23.9.2015 4.1.3- Law on the Training Centre Realized Realized in the Judiciary and the State Prosecutor's Office;

154

5.2 Fight against corruption in Montenegro

5.2.1 The EU transformative power in anti-corruption and domestic change

5.2.1.1 Pre-negotiation stage

This section provides insight into the Union-driven rule of law promotion in combating respective corruption and Montenegrin responses in 2006, respectively in the year when the target accession country gained its independence, with the purpose of specifying background information on the fight against corruption in Montenegro before the defined time frame of this research.

In that regard, the 2006 Montenegro Progress Report accompanied by the EU Enlargement Strategy 2006 – 2007, which was enacted on 8 November 2006, urged Montenegrin state authorities to strengthen their legal and institutional framework in order to achieve visible results in fighting corruption, particularly so in preventing and prosecuting corruption. Furthermore, the EU clearly underlined importance of amending the then Law on Conflict of Interest and necessity to have effective implementation of the laws on political parties, but also the Union requested further development of state capacities, especially through sufficient resources and additional training of all relevant agencies aiming to fully implement the UN Convention on corruption. In addition, the Commission expressed serious concerns over providing credible track record of investigation, prosecution, and final convictions of all high-level cases (European Commission 2006a: 43; European Commission 2006b: 11).

Following the Commission’s recommendations stipulated within the 2006 Montenegro Progress Report and the EU Enlargement Strategy 2006–2007, the Government responded by adopting the Program against the Corruption and Organized Crime as the main strategic document in combating corruption in Montenegro on 28 June 2005, followed by the Action Plan for implementation of the Program against the Corruption and Organized Crime enacted on 24 August 2006, and also stablished the National Commission for Monitoring of implementation of Action Plan for implementation of the Program against the Corruption and Organized Crime on 15 February 2007 (Vlada Crne Gore 2005; Vlada Crne Gore 2006).

In addition, in line with the Union’s recommendations to amend the then laws on conflict of interest, ensure effective implementation of the laws on political parties, secure development of state capacities, and achieve credible-track record in investigation, prosecution

155 and final conviction of high-level corruption cases, the state authorities achieved deficient results in the process of alignment with the given requirements.

Prevention of corruption

Introduction of the European Partnership with Montenegro, which came into force on the 17 January 2007, represents means of supporting the European perspective of the Western Balkan countries following conclusions of the Thessaloniki European Council of 19-20 June 2003 (Council of the European Union 2007: 2). In order to be prepared to assume EU membership obligations, potential candidate countries are requested to address both short-term priorities (expected to be accomplished within 2 years) and medium-term priorities (expected to be accomplished within 3 or 4 years) of the European Partnership (Council of the European Union 2007: 2). In this sense, concerning key short-term priority, the Council urged Montenegro to strengthen its fight against organized crime and corruption at all levels. The European Partnership emphasized necessity of amending and fully implementing current law on conflict of interest in order to eliminate all possible cases of conflict of interest of its officials, and significance of strengthening and implementing the law on political parties, thus aiming to ensure transparency and clarity of financing of political parties (Council of the European Union 2007: 6).

Only four months after the introduction of the European Partnership with Montenegro, Montenegrin government adopted the Action Plan for Implementation of the European Partnership on its session held on 17 May 2007. By the same token, concerning the Council’s priorities on full implementation of the then law on conflict of interest to eliminate all possible case of conflict of interest of officials, the Parliament adopted the Law on Conflict of Interests of Public Servants on 27 December 2008. In addition, in regard to the last of the Council’s recommendations related to strengthening and implementing the law on political parties and ensuring the transparency and clarity of financing of political parties, the Parliament enacted the Law on Financing of Political Parties on 18 July 2008.

In regard to the Council’s demands over addressing medium-term priorities, particularly so over prevention of and fight against corruption at all levels by providing additional funds, full alignment with the UN Convention on the fight against corruption and other relevant Council of Europe Conventions, as well as providing convincing results by establishing effective procedures for detection, treatment and follow-up of cases of suspected

156 fraud including EU funds, the state authorities introduced a number of activities, measures and plans in order to effectively prevent and supress corruption.38

In addition, ten months after the introduction of the European Partnership program, the Commission issued the first independent report, entitled the 2007 Montenegro Progress Report, accompanied by the EU Enlargement Strategy 2007-2008 that was launched on 6 November 2007. Both documents are unique in terms of pointing out to corruption as being a wide-spread issue and thus remaining a very serious problem in Montenegro (European Commission 2007a: 41; European Commission 2007b: 12). Respectively, although Montenegro as the potential candidate country had by that time demonstrated a very few results in the fight against corruption, the Commission underlined that only achieving concrete results in terms of anti-corruption policies, especially in relation to high-level corruption cases, was the most important goal for Podgorica (European Commission 2007b: 12).

In this sense, the Union primarily emphasized the importance of full implementation of Montenegrin action plan on fighting corruption and organized crime. Therefore, the Commission continued to emphasize the significance of further enhancing the anti-corruption policy by Podgorica’s need to substantially amend the Law on Conflict of Interest. Moreover, the Union raised serious concerns over management of public assets taking into account the then short falls in appropriate legislation on the conflict of interest for public officials (European Commission 2007a: 41; European Commission 2007b: 12). In addition, the EU demanded improvements in activities aiming to curb political corruption due to lack of transparency of financing of political parties and election campaigns, as well as pointing towards the issue of non-existence of reliable disclosure of sources of income.

At the domestic level, concerning the Commission’s recommendations over preventing corruption, particularly so in improving the activities curbing political corruption due to lack transparency of financing of political parties and election campaigns, the Parliament enacted the Law on Financing of Political Parties on 18 July 2008. In addition, concerning the Union’s demands to further strengthen the legislation on conflict of interest for public officials due to concerns over management of public assets, the state bodies did not engage in any actions on this particular issue.

38 The medium-term priorities have not been specifically explained because the fulfilment of these measures are carried out during the whole pre-negotiating phase. More more details: Appendix 2 – Anti-corruption policy in Montenegro – Normative and empirical analysis of EU – Montenegro documents for a period of time 2006-2017, pp. 227-228.

157

Shortly after Montenegro submitted its application for the EU membership, the Commission issued the 2008 Montenegro Progress Report, together with EU Enlargement Strategy 2008-2009, on 5 November 2008. The Commission acknowledged some progress achieved in the fight against corruption as being the key European Partnership priority, particularly in improving strategic and administrative framework for combating corruption, addressing low-level corruption and focusing on awareness-raising and training. However, the Union highlighted that corruption still at that time remained widespread and continued to be a serious problem in Montenegro, especially in case of high-level corruption. Furthermore, the Commission also raised additional remarks over weak implementation and limited results in combating corruption (European Commission 2008a: 43; European Commission 2008b: 13).

In this respect, the Union highlighted the importance of strengthening the legal framework of anti-corruption battle, particularly so through the adoption of new Law on Conflicts of Interest (European Commission 2008a: 43; European Commission 2008b: 12). Likewise, the Commission indicated the need for enhancing protection of whistle-blowers in practise, even though the country had by that time already improved its legal framework in this regard (European Commission 2008b: 12).

In addition, in order to further improve preventive measures on corruption, the Commission underscored the necessity of strengthening Montenegrin institutional framework. Although some progress had been made in enhancing preventive and investigative anti- corruption bodies such as Directorate for Anti-Corruption Initiative (DACI), especially in cooperation with police, the Union emphasised the importance of further improvements of the institutional set-up. In this sense, the Union pointed out that ‘Montenegro lacks strong and independent supervisory and auditing authorities’ needed in order to impartially and objectively enforce assessment of asset declarations and funding of political parties (European Commission 2008b: 12). The Commission at that time stated that establishment of new monitoring institutions was necessary mostly because ‘declarations of assets by political parties so far have been incomplete and public authorities were unable to enforce the law or to investigate the data provided’ (European Commission 2008b: 12).

Given the Commission’s recommendation over strengthening the legal and institutional framework of anti-corruption policies in preventing corruption, the Government adopted Innovative Action Plan for implementation of the Program against the corruption and organized crime for 2008-2009 in 2008. In addition, the Parliament adopted the Law on

158

Prevention of Conflicts of Interest in Performing Public Functions on 27 December 2008. Furthermore, the state authorities conducted further efforts in improving the legal framework in tackling corruption issues by adopting new Criminal Procedure Code on 18 August 2009, the Law on Internal Financial Control on 2 December 2008, and finally the Law on Financing the Election Campaigns for the President, Mayors and Presidents of Municipalities of Montenegro on 21 January 2009. Furthermore, concerning the Union’s suggestions over the improvement of legal system of protection of whistle-blowers, evidently the state bodies had by that time failed to conduct any recognizable activities aiming to enhance this measure due to their failure to adopt the Law on Protection of the Persons reporting Corruption and the Law on Integrity in Public Sector (MANS 2009: 75).

By the same token, in reference to the Commission’s demand to improve the preventive measures, especially in establishing independent supervisory and auditing authorities in order to impartially and objectively enforce and assess declarations of assets and funding of political parties, the State Auditing Institution (SAI) was assigned with conducting revisions of legality and successfulness of management of state property and obligations, budgets and financial affairs of the entities whose sources of financing are public or emerge from the use of the state properties (MANS 2009: 75). Unlike the performance of the SAI, the state authorities failed to conduct any legal measures in regards to the Union’s suggestion of further strengthening the institutional supervisory anti-corruption framework as being able to independently check political parties’ funding and respective election campaigns.

The introduction of the 2009 Montenegro Progress Report followed by the EU Enlargement Strategy 2009-2010, which was enacted on 14 October 2009, brought novelties in terms of the Commission’s monitoring and evaluation of anti-corruption reform activities. Originally, the Union acknowledged that Montenegro had made some progress in its fight against corruption, especially when strengthening strategic, legal and administrative framework was taken into consideration (European Commission 2009b: 11, 13). However, regardless of the results achieved, the Commission also underlined corruption remaining prevalent and thus continuing to be a major issue (European Commission 2009b: 13). Therefore, the Union outlined the necessity of the state to achieve concrete results with reference to consolidation of rule of law, particularly in the area of judicial reform and fight against corruption (European Commission 2009a: 14).

159

Primarily, the EU highlighted the need for Montenegro to improve its action plans for fighting organised crime and corruption by stating that these needed to be aligned in terms of risk assessments and introduction of priorities for respective action (European Commission 2009b: 12). In addition, the Commission underlined the necessity of further enhancing the institutional set-up by introducing independent supervisory authorities as evaluating asset declarations and financing of political parties. The Union noted that since the supervising authority monitoring compliance with the new Law on Financing of Political Parties and the Law on Financing of Election Campaigns for the President, Mayors and Presidents of Municipalities of Montenegro had still by that time not been implemented, political parties’ alignment with the law was supervised only by allocations from the state budget. Therefore, private donations for political parties were not being controlled due to inexistence of monitoring bodies (European Commission 2009b: 12). Furthermore, the EU made remarks over the appointment of the supervising authority by the Parliament, as well as the parliamentary sanctioning power as being limited in scope due to potential political influence (European Commission 2009b: 12-13).

By the same token, the Commission noted that although some improvements were made through the adoption of the new Law on Prevention of Conflict of Interests in Performing Public Functions (2008), the same legislation contained serious shortfalls and loopholes. In this regard, the Union indicated the importance of further strengthening Montenegrin legal system through major amendments of recently adopted laws, especially in terms of the then legal provisions foreseeing ‘significant exemption for parliamentarians, who are allowed to hold executive powers in public companies or executive agencies’ (European Commission 2009b: 12).

Following the bottom-up level, in regard to the Union’s recommendation to Montenegro to improve the then action plan for the fight against corruption, the state bodies adopted new Strategy for the fight against Corruption and Organized Crime 2010-2014 and Action Plan for Implementation 2010-2012 on 29 July 2010 (Ministarstvo unutrašnjih poslova i javne uprave Crne Gore 2010). Monitoring of achieved activities of the strategy in the period of implementation of the Action Plan 2010-2012 was exercised by the National Commission for implementation of Strategy for the fight against corruption and organized crime (hereinafter referred to as the National Commission).

160

In addition, concerning the Commission’s suggestion over the need to improve the institutional framework through the introduction of independent supervisory authorities evaluating financing of political parties and asset declarations, Montenegrin legislative bodies failed to adopt any amendments to the Law on State Audit Institution, which was to follow the establishment of independent audit bodies outside the organizational structure of the state audit institutions, as well as amendments to the Law on Prevention of Conflicts of Interest in Performing Public Functions in order to strengthened the Commission’s for the Prevention of the Conflict of Interest supervisory competences (Vlada Crne Gore, Prvi izvještaj o realizaciji mjera iz Akcionog plana za sprovođenje strategije za borbu protiv korupcije i organizovanog kriminala 2011: 14, 20-21, hereinafter referred to as Prvi izvještaj o realizaciji mjera iz Akcionog plana 2011). Also, when it comes to the Union’s requirement to amend the then Law on Prevention of Conflict of Interests in order to change legal provisions foreseeing significant exemption for parliamentarians holding executive positions in public companies or executive agencies, the Ministry for Interior and Public Administration took additional actions towards more concrete suggestions for amending the then law (Prvi izvještaj o realizaciji mjera iz Akcionog plana 2011: 14).

Three years after the SAA with Montenegro was signed, and parallel to the new Enlargement Strategy and its main challenges for 2010-2011, the Commission introduced Opinion on Montenegro’s application for membership of the European Union on 9 November 2010, which was then followed by the EU Enlargement Strategy 2010-2011. The Union commended Montenegro’s progress towards strengthening its legal system and institutional set-up in combating corruption. However, regardless of visible results in the respective anti- corruption policy, implementation remained deficient, especially in terms of law enforcement within the institutional fight against corruption (European Commission 2010: 6).

In a nutshell, the Commission confirmed that corruption was widespread in many areas and continued to be a serious problem for Montenegro. Primarily, the Union indicated that anti- corruptive legislation was not fully implemented, particularly so in the case of prevention of conflict of interest and on financing of political parties and electoral campaigns. Furthermore, the institutional framework contained visible flaws. Apparently, Montenegrin supervisory authorities did not hold appropriate legal mechanisms to ensure enforcement of the laws on prevention of conflict of interest and control over funding of political parties and electoral campaigns (European Commission 2010: 6).

161

Overall, the Commission acknowledged that Montenegro indeed made progress towards adoption of the acquis and alignment with the EU policies in the area of anti- corruption. However, the Commission also mentioned that further efforts were needed to:

“Improve the anti-corruption legal framework and implement the government's anti- corruption strategy and action plan; establish a solid track record of proactive investigations, prosecutions and convictions in corruption cases at all levels.” (European Commission 2010b:11) Thus, based on the Commission’s assessment of Montenegro’s solid progress in the fight against corruption, the European Council on 17 December 2010 granted Montenegro status of the candidate country.

On the domestic level, based on the Council’s decision from 2010 to grant Montenegro the status of the candidate country for the EU membership, the Government, as a response, adopted Action Plan of monitoring recommendation from the European Commission on 17 February 2011, along with the Innovative Action Plan for implementation of the Strategy against Corruption and Organized Crime 2010-2012 on 21 July 2011 (Akcioni plan praćenja sprovođenja preporuka iz mišljenja Evropske komisije 2011: 2).39 Originally, the Action Plan was a subject of external and internal monitoring, which meant that the plan had been originally submitted to the Commission (but also to the Venice Commission, or SIGMA depending on the topic) for providing comments and suggestions after which the Government itself (but also the Assembly Committee for International Relations and European Integration, and National Council for European Integration) considered and evaluated monthly reports on realization of obligations within the Action Plan (Informacija o realizaciji ključnih aktivnosti iz Akcionog plana sprovođenja preporuka iz mišljenja Evropske komisije 2011: 2).

With reference to the Commission’s suggestion stipulated within the Opinion, the state bodies took additional actions in enhancing the strategic, legal and institutional framework in preventing corruption. In this sense, certain results were achieved in improving the strategic framework through the introduction of the new Anti-corruption strategy and Action plan. In particular, the National Commission improved its performances primarily through the rules of procedure amendments allowing participation of anti-corruption state body representatives on the Commission’s sessions, as well as possibility of the Commission’s actions being based on citizen complains on combating corruption and organized crime issues. As a result of these activities, the National Commission proposed the Innovated Action Plan 2011-2012 for

39 The Action Plan also contains the Action Plan of the Parliament of Montenegro.

162 implementation of Strategy for the fight against Corruption and Organized Crime which was adopted by the Government on 21 July 2011 (Informacija o realizaciji ključnih aktivnosti iz akcionog plana 2011: 13). In the period between 2011 and 2012, the National Commission adopted four reports on realizations of measures from the Action Plan. Based on the Second Report on realizations of measures from the Action Plan for the period between 1 January and 30 June 2011, there were in total 266 measures – 67 measures were realized (26.48%), 112 measures (44.27%) were partly realized, and 74 measures (29.25%) were unrealized. Given the Third Report on realizations of measures from the Innovative Action Plan for the period between 1 July and 31 December 2011, there were in total 372 measures – 93 measures were realized (31.74 %), 98 measures (33.45%) were partly realized, and 101 measures (34.81%) were unrealized. Following the Fourth Report on realizations of measures from the Innovative Action Plan for the period between 1 January and 30 June 2012, there were in total 372 measures – 129 measures were realized (35.54%), 115 measures (31.68%) were partly realized, and 119 measures (32.78%) were unrealized. Based on the Fifth Report on realizations of measures from the Innovative Action Plan for the period between 1 July and 31 December 2012, there were in total 372 measures – 161 measures were realized (43.28%), 109 measures (29.30%) were partly realized, and 74 measures (27.42%) were unrealized (Vlada Crne Gore, Drugi izvještaj o realizaciji mjera iz Akcionog Plana za sprovođenje Strategije za borbu protiv korupcije i organizovanog kriminala 2011: 13; Vlada Crne Gore, Treći izvještaj o realizaciji mjera iz Inoviranog Akcionog Plana za sprovođenje Strategije za borbu protiv korupcije i organizovanog kriminala 2012: 14; Vlada Crne Gore, Četvrti izvještaj o realizaciji mjera iz Inoviranog Akcionog Plana za sprovođenje Strategije za borbu protiv korupcije i organizovanog kriminala 2012: 12; Vlada Crne Gore, Peti izvještaj o realizaciji mjera iz Inoviranog Akcionog Plana za sprovođenje Strategije za borbu protiv korupcije i organizovanog kriminala 2013: 13).

In addition, concerning the Commission’s demand over improvement of the legal framework in preventing corruption, the Parliament, primarily, adopted Amendments to the Criminal Code on 22 June 2011, thus incorporating GRECO recommendations on criminal offenses of receiving and giving bribes and trading with influence, and the Law on Civil Servants and State employees on 22 July 2011, foreseeing obligations of adoption of integrity plans in public sector and instituting protection of individuals who report corruption. In addition, the Parliament enacted the Amendments on the Law on Prevention of Conflicts of Interest in Performing Public Functions on 26 July 2011, thus stipulating that individuals

163 elected in elections cannot be members of management and supervisory boards. Also, the amendments strengthened the monitoring role of the Commission on Prevention of Conflicts of Interest (CPCI) in terms of data verification, with the given legislation also foreseeing stricter penal policy measures (Informacija o realizaciji ključnih aktivnosti iz Akcionog plana 2011: 15). Finally, the legislative body adopted the Law on Financing of Political Parties on 29 July 2012 and enacted rules for financial needs of regular work and election campaign of political parties in accordance with the GRECO recommendations. Also, the revision of financial reports was strengthened, thus enabling transparent financing and better control of income, expense and assets of political parties. By the same token, draft of the new Law on the State Election Commission was in its final stage of preparation at the time (Informacija o realizaciji ključnih aktivnosti iz Akcionog plana 2011: 15).

The 2011 Montenegro Progress Report accompanied by the EU Enlargement Strategy 2011-2012, which was introduced on 12 October 2011, provided more detailed elaboration of the Union’s view of Montenegro’s assessment in combating corruption.40 The Commission confirmed some progress had by that time been made in improving the anti-corruption policy, especially towards strengthening the institutional and administrative capacity of prosecutors and police to fight corruption by repressing it, with prevention also being tightened, and, perhaps far more importantly, satisfactory results being made in implementation of the Government’s Anti-corruption Strategy and Action Plan, as the key priority set out in the Opinion (European Commission 2011a : 14; European Commission 2011b: 12-13). However, although the Union acknowledged that certain advance in strengthening legal, institutional and administrative framework was made by the state authorities, this body also emphasized corruption remaining a serious problem in Montenegro and continuing to be widespread in many fields. Therefore, according to the Commission’s document, the implementation of the adopted institutional and legal framework remained deficient at the time.

40 Based on the then progress of Montenegro towards the EU membership, the European Parliament adopted the Resolution on the 2011 Montenegro Progress Report on 29 March 2012. However, taking into account that the Parliament repeated recommendations stipulated within the 2011 Montenegro Progress Report, and, perhaps far more importantly, that the European Commission remained a leading EU institution for conducting the EU enlargement process, this study is mainly focus on the Commission’s suggestions stipulated within the progress reports and enlargement strategies. For more details: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=- %2f%2fEP%2f%2fTEXT%2bTA%2bP7-TA-2012- 0117%2b0%2bDOC%2bXML%2bV0%2f%2fEN&language=EN .

164

In this sense, the Union primarily highlighted the importance of full implementation of newly adopted anti-corruption legislation, particularly in terms of development of proper impact assessment, including plans for improvement of human and financial resources and preparation of implementation. In addition, the Commission underlined the significance of full entry into force of new provisions of the CPC and the Criminal Code that had not been sufficiently introduced by that time and also indicated the need of further training of judges. In this regard, the Union clearly stated that the problem of judicial independence continued to be matter of concern significantly affecting determination to combat corruption (European Commission 2011b: 13-14).

By the same token, the lack of effective prevention of corruption was also seen in limited implementation of new legislation on financing of political parties and election campaigns. Thus, the Commission noted that ‘concern remains over the insufficiently dissuasive and undifferentiated sanctioning system, the regime and ceiling of membership fees, as well as the capacity of the State Electoral Commission (SEC) to ensure a fully effective independent oversight’ (European Commission 2011b: 14). Furthermore, additional flaws were also observable in terms of functional adoption of the conflict of interest. Apparently, the report indicated that disciplinary provisions were at the time being insufficiently implemented in practice due to the fact that only few sanctions for non-compliance were introduced by the supervisory bodies. Therefore, the Commission noted that ‘the asset declarations of civil servants are still not being checked on substance to identify illicit enrichment’ (European Commission 2011b: 14).

Based on the Council’s decision to start the process of accession negotiations with Montenegro in June 2012 and followed by the Commission’s positive assessment of reforms within the 2011 Progress Report, new incorporating negotiation approach was proposed by the Commission, thus focusing on Chapter 23 – Judiciary and Fundamental Rights and Chapter 24 – Justice, Freedom and Security, which influenced the Government to adopt the Annex to Report to European Commission on Montenegro’s Progress for 2012 – for a period of 1 September 2011 to 25 April 2012 on 25 April 2012, and Annex to Report to European Commission on Montenegro’s Progress for 2012 – for a period of 25 April 2012 - 1 September 2012 on 6 September 2012, so as to timely and adequately conduct the monitoring process of fight against corruption prior to opening of the accession negotiations (European Council 2011: 5; Prilog izvještaju Evropske komisije o napretku Crne Gore za 2012. – za period 1. septembra

165

2011 – 25. aprila 2012; Prilog izvještaju Evropske komisije o napretku Crne Gore za 2012. – za period 25. aprila 2012. – 1. septembra 2012).

Concerning the Union’s suggestions over necessity for full entry into force of new provisions of the CPC and the Criminal Code that had not been sufficiently introduced by that time and further training of judges that was also required, in the period from 25 April until 15 December 2012 the JTC engaged in 12 activities of continuous education and 4 activities of initial education for 62 representatives of judiciary in the area of implementation of new criminal legislation of Montenegro (Prilog izvještaju Evropske komisije o napretku Crne Gore za 2012. – za period 25. aprila 2012. – 1. septembra 2012: 84). In addition, regarding the Commission’s recommendation over ineffective prevention of corruption, especially in limited implementation of new legislation on financing of political parties and election campaigns not providing full effectiveness of the SEC to conduct independent oversight and disciplinary measures on civil servants, the state bodies failed to take any particular action in this regard (Vlada Crne Gore, Četvrti izvjestaj o realizaciji mjera iz Inoviranog Akcionog Plana za sprovodjenje strategije za borbu protiv korupcije i organizovanog kriminala 2012: 26).

Hence, based on the Commission’s assessment of solid progress made by Montenegro towards 7 key priorities stipulated within the Opinion, the Council in its conclusion adopted on 9 December 2011 invited the Commission to present a proposal for a negotiations framework with Montenegro, incorporating the new approach proposed by the Commission regarding the chapters on judiciary and fundamental rights, and justice, freedom and security, and also inviting this body to start the process of applying the analytical framework of examination of the acquis communautaire with Montenegro concerning Chapters 23 and 24 (European Council 2011: 5).

Therefore, based on the Commission’s assessment of good progress made by Montenegro in 2011 by achieving overall satisfactory results in meeting 7 defined priorities, including fight against the corruption, as published in the document entitled Report from the Commission to the European Parliament and the Council on Montenegro’s Progress in the Implementation of Reforms from 22 May 2012, the European Council decided to open the accession negotiations with Montenegro in late June 2012 (European Commission 2012a: 12).

166

Empirical descriptive analysis of logic of Europeanization through externally driven compliance by conditionality indicates that country did not comply with the Union’s conditions in combating corruption during the pre-negotiation phase due to incompatibility of EU-driven pressure and domestically-driven norms and political socialization. Instead, apart from determinacy of EU conditions, Montenegro’s failure to fulfil anti-corruption demands was primarily the result of cost-benefit calculations of external and internal actors and a number of factors, namely size and the speed of the EU rewards, credibility of the EU treats, and finally the size of the adoption costs (Schimmelfennig and Sedelmeier 2005: 10-17; Sedelmeier 2011: 15; Cebelis 2016: 20).

Investigation, prosecution and final conviction of high-level corruption cases

Concerning the Council’s short-term priorities stipulated within the European Partnership from 2007, particularly in regards to investigation, prosecution and final conviction of high-level corruption cases,41 the Union highlighted the necessity of ‘setting up efficient institutional mechanisms for inter-agency cooperation and enhancing the operational capacity of law enforcement bodies’ (Council of the European Union 2007: 4). In addition, the Council emphasized the importance of demonstrating further efforts by Montenegro on implementing its anti-corruption strategy through ensuring adequate financial and human resources to law enforcement bodies (Council of the European Union 2007: 6).

At the domestic level, following the Council’s short term priorities over repressing corruption, in particular concerning the establishment of institutional mechanisms for inter- agency cooperation and enhancing the operational capacity of law enforcement bodies, certain progress was seen in the inter-institutional cooperation, especially between judiciary and the Custom and Tax Administration (Vlada Crne Gore, Prvi izvještaj o relizaciji mjera iz Akcionog plana za sprovođenje Programa borbe protiv korupcije i organizovanog kriminala – 1.9.2006 – 1.5.2007: 69-70, hereinafter referred to as Prvi izvještaj o relizaciji mjera iz Akcionog plana 2007). Furthermore, the state bodies conducted additional activities towards strengthening the main anti-corruption prevention and investigation body, known as the Directorate for Anti- Corruption Initiative (DACI), through development of staff, additional allocation of financial funds, and purchase of necessary equipment (purchase of computers), so that this body would

41 This measure also includes progress in the field of development of capacities of law enforcement bodies.

167 be able to coordinate investigative activities with other anti-corruption agencies (Prvi izvještaj o relizaciji mjera iz Akcionog plana 2007: 89).

By the same token, in regard to second of the Council’s suggestions related to implementation of the anti-corruption strategy through ensuring adequate financial and human resources to law enforcement bodies, the Government started the Program against Corruption and Organized Crime (2005), followed by the Action Plan for implementation of the Program against Corruption and Organized Crime (2006), and also established the Commission for monitoring of implementation of the Action Plan for implementation of the Program against Corruption and Organized Crime (2007). Additional activities were taken in increasing the number of prosecutors in combating corruption, namely two state prosecutors and three deputy state prosecutors were employed in the state prosecution office and two deputies within the Higher State Prosecutor Office, while ensuring adequate salaries through already adopted Law on salaries and other income of holders of judicial office and the rule of procedures of the state prosecutor’s office on 15 June 2007 (Prvi izvještaj o relizaciji mjera iz Akcionog plana 2007: 48).

Following the 2007 Montenegro Progress Report accompanied by 2007-2008 EU enlargement strategy, the Commission emphasized the importance of providing concrete and substantial results in investigation, prosecution and final conviction of high-level corruption cases (European Commission 2007b: 12). As a response, the state authorities failed to introduce any activities in order to tackle this particular reform measure in 2008 given the Union’s serious concern over insufficiently low number of monitoring, prosecution and trial of high-level corruption cases.

With reference to the Union’s requirements over strengthening repressive anti- corruption actions, especially over achieving credible track-records of investigation, prosecution, and final conviction of corruption of high-level cases, the Commission within the 2008 Montenegro Progress Report concluded that ‘conviction rates in corruption cases are extremely low’ (European Commission 2008b: 13). Also, the Union indicated that investigate capacities of the law enforcement bodies remained very limited, but also that there was a significant lack of expertise in financial investigation (European Commission 2008b: 13). Furthermore, the problem of insufficiently developed capacities to fight against corruption was also seen within the Special Prosecutor Office and special anti-corruption police task force that

168 lacked substantial capacity in terms of staffing, expertise and equipment (European Commission 2008b: 13).

Observing the bottom-up level, when it comes to the Union’s recommendation stipulated within the 2008 Montenegro Progress Report, particularly so over providing convincing track-records of investigation, prosecution, and final conviction of corruption high- level cases, enhancing investigative capacities of the law enforcement bodies and expertise in financial investigations and developing capacities within the Special Prosecutor Office and special anti-corruption police task force in terms of staffing, expertise and equipment, there were no measures within the Action Plan anticipating the development of anti-corruption capacities of the above-mentioned law enforcement bodies.

Following the Commission’s recommendations stipulated within the 2009 Montenegro Progress Report, the Union also recognized that administrative bodies for detecting and investigating corruption were faced with substantial lack of staff and skills, particularly when it came to performance of the Police Directorate’s internal control unit, namely the Unit for combating organised crime and corruption, and the prosecution office (European Commission 2009b: 13). In addition, the Commission underlined the significance of having a solid track record of conviction of corruption cases, especially of high-level corruption criminal offenses. In this sense, the Commission devoted special attention to improving investigative capacities of law enforcement bodies by noting that this authority ‘remains weak due to shortfalls in expertise, specialised equipment and working conditions’ (European Commission 2009b: 13). Finally, in order to provide convincing and sustainable track-records of investigation, prosecution and final conviction of high-level corruption cases, the Union underlined that inter- agency cooperation needed to be further strengthened, and that significant lack of expertise in modern financial investigation was to be improved (European Commission 2009b: 13).

Speaking of the domestic level, certain improvements were seen in enhancing repressive action of corruption following the Commission’s recommendations from 2008, especially over strengthening investigative capacities of the law enforcement bodies. In this sense, further developments were observable in improving the expertise of investigative capacities of the law enforcement bodies in the field of modern financial investigation by organizing 3 seminars for anti-corruption state authorities dealing with issues of financial investigation, detection, freezing, confiscating and managing assets acquired by criminal offenses by the Judicial Training Centre (JTC) and the Police Academy. Furthermore, certain

169 activities were observable in further strengthening of financial investigation capacities by employing 16 officials within the Police Directorate responsible for conducting financial investigation (Prvi izvještaj o realizaciji mjera iz Akcionog plana 2011: 39, 43).

Also, regarding the Commission’s recommendation to strengthen inter-agency cooperation for combating corruption, national co-ordination office had still not been established by that time. However, certain progress was seen in terms of creation of condition and capacities for Special Investigation Team (SIT). The SIT was spatially and technically equipped, and at that time it conducted investigation in four corruption cases and one financial case (Prvi izvještaj o realizaciji mjera iz Akcionog plana 2011: 47).

Finally, with reference to the Commission’s demand for Montenegro to further strengthen its administrative bodies for detecting and investigating corruption, at that time faced with substantial lack of staff and skills, especially when in terms of the Police Directorate’s internal control unit, i.e., the Unit for combating organised crime and corruption, and state prosecution office, and perhaps far more importantly, in achieving solid track record of conviction of high-level corruption cases by the law-enforcement bodies, no further activities were conducted by the state anti-corruption authorities.

Following the Commission’s Opinion on Montenegro’s application for membership of the European Union from 2010, the Union indicated that ‘track record of investigations, prosecutions and final convictions in corruption cases at all levels remains low,’ while ‘investigation capacities and law-enforcement co-ordination remain weak.’ Therefore, the Commission underlined the necessity of strong political will in order to further strengthen the legal and institutional framework for combating corruption, especially in establishing a solid track record of proactive investigations, prosecutions and convictions in corruption cases at all levels (European Commission 2010: 6).

In line with the Commission’s recommendations stipulated within the Opinion from 2010, the state authorities intensified their activities in improving strategic, legal and institutional and framework in combating corruption. More precisely, investigation capacities and co-operation between the law enforcement bodies were strengthened, thus ultimately leading to concrete results and establishment of a track record in combating corruption (Informacija o realizaciji ključnih aktivnosti iz Akcionog plana 2011: 13). Primarily, the state bodies intensified additional activities in strengthening the institutional and administrative capacities in repressing corruption. In particular, the Department for fight against organized

170 crime, corruption, terrorism and war crimes was established and managed by the State Special Prosecutor. Except of this Department, the Special Investigation Team (SIT) was established as a specialized multi-disciplinary and multi-institutional unit operating against most complex issues of corruption, organized crime and financial investigation (Informacija o realizaciji ključnih aktivnosti iz Akcionog plana 2011: 15).42

Finally, with reference to the Union’s requirement to introduce solid track record of proactive investigations, prosecutions and convictions in corruption cases at all levels, in case of ‘Komunalni redari,’ one investigation was conducted by the State Prosecutors Office against 2 communal officials due to suspicion of having committed acts of corruption in terms of criminal offense of giving and receiving bribes. Concerning another prosecution issue, that one of ‘Auto moto društvo Budva,’43 ‘dr Mikulić,’44 ‘Signal,’45 and ‘Zeta’46 during 2010 and 2011, the State Prosecutors office filed criminal charges against several individuals due to suspicion of having engaged in giving and receiving bribes. Far more importantly, in the case of ‘Zavala,’ on 21 March 2011 the State Prosecutors Office filed charges against twelve persons, three of which were high officials of the ruling party Democratic Party of Socialists (DPS): namely, the Major of Budva Municipality, his Deputy, and an MP were accused of abuse of official position and power in financial transactions and tax evasion. They were charged for the criminal offense of corruption by illegally gaining assets benefits in total amount of 1.035.698,62, -EUR. Last but not the least, regarding the Union’s request for providing a number of high-level corruption cases in which the seizure or confiscation of assets was ordered by the law enforcement bodies, for instance in the case named ‘Šarić,’ on 14 May 2011 the State Prosecutors Office filed criminal charges against Duško Šarić and Jovica Lončar due to suspicion of them having engaged in money laundering. The defendants were charged because in the period between

42 The unit is comprised of representatives of the Directorate of Police, Directorate for Prevention of Money Laundering and Terrorist Financing, Directorate of Revenues, and Customs Administration, and for their performances they are responsible to the State Special Prosecutor. 43 The State Prosecutor Office filed criminal charges against 11 persons on 11 March 2011 for the criminal offense of abuse of power in economy in attempt, due to suspicion that in the period from 2007 to 2010 they tried to transfer state property to private ownership, and therefore acquired unlawful material benefits in the amount of 3.344.870,00, -EUR. 44 The State Prosecutor Office filed criminal charges against five persons on 9 March 2011 for the criminal offense against one recipient of a bribe, a specialist doctor specialist, in the total amount of 500, -EUR, and against a judge, lawyer, doctor, and one citizen for the crime of giving bribe. 45 The State Prosecutor Office filed criminal charges against 21 individuals on 23 August 2010 for the criminal offense of abuse of official position - enabling physical and legal persons to transfer goods over the customs line without paying customs, receiving bribes, and receiving cash compensation for the purpose of performing official duties. 46 The State Prosecutor Office filed criminal charges against two individuals - authorized police officers on 27 October 2011 for the criminal offense of receiving a bribe.

171

2006 and 2009 they used banking and financial operations in order to introduce ‘dirty money’ in the total amount of 21.353.879.22, -EUR that originated from cocaine trade. As a result, the Higher Court in Bijelo Polje issued a decision on temporary confiscation of property estimated at 12.483.577.54, -EUR (Informacija o realizaciji ključnih aktivnosti iz Akcionog plana 2011: 39-40).

The Commission in its 2011 Montenegro Progress Report acknowledged that the candidate country had by that time achieved a solid track record of investigation, prosecution and convictions in corruption cases at all levels, which remained one of the key priorities stipulated within the Commission’s Opinion. However, the numbers of final convictions remained low and limited, in particular of high-level corruption cases (European Commission 2011b: 14). In this sense, the Union indicated that ‘the number of corruption cases in which seizure or confiscation of assets were ordered is still very low,’ while the adopted legal provision within CPC and Criminal Code on extended confiscation of criminal assets were still not appropriately used (European Commission 2011b: 14).

Additionally, in order to provide a credible track-record of investigation, prosecution and conviction in corruption cases at all levels, the Commission underlined the necessity of the state bodies further enhancing the institutional and administrative capacity. Primarily, the EU suggested that the capacity of prosecutors and police to conduct financial investigation, including criminal assets and presenting related evidence before the courts needed to be developed. Finally, the inter-agency cooperation and exchange information between law bodies enforcement (police and prosecutors) needed to be further improved (European Commission 2011b: 14).

At the domestic level, with reference to the EU’s demand over strengthening repressive anti-corruption actions, especially when it comes to achieving a convincing number of final conviction of high-level cases and number of corruption cases in which seizure or confiscation of assets was ordered, the State Prosecutors Office prosecuted the Major of Ulcinj Municipality due to suspicion of having committed a corruption criminal offense of abuse of official position. Final conviction was made and based on the institute of the plea-agreement according to which the defendant was obliged to pay 10.000, -EUR to charity. In addition, in the case of ‘Zavala,’ the Higher Court in Podgorica issued final conviction, with the former Mayor of Budva being sentenced to 5 years of imprisonment, his Deputy to 4 years, and the MP to 3

172 years (Prilog izvještaju Evropske komisije o napretku Crne Gore za 2012. – za period 25. aprila 2012. – 1. septembra 2012: 83).

Furthermore, the Parliament adopted Amendments to the Law on Temporary Seized Assets on 15 June 2012, thus foreseeing the possibility for the Directorate of Assets to temporarily seize assets placed under lease through public bidding (Prilog izvještaju Evropske komisije o napretku Crne Gore za 2012. – za period 25. aprila 2012. – 1. septembra 2012: 80). In this respect, the law enforcement bodies conducted procedures for temporary seizing of assets in three cases in 2012, namely in the cases of Šarić, Kalić i Khvan due to suspicion of money laundering. It is estimated that the value of temporary seized assets was 47.3 million EUR. For the sake of the record, there was no confiscation of assets by the law enforcement bodies during the reporting period (Prilog izvještaju Evropske komisije o napretku Crne Gore za 2012. – za period 25. aprila 2012. – 1. septembra 2012: 84; Vlada Crne Gore, Treći izvještaj o realizaciji mjera iz Inoviranog Akcionog Plana za sprovođenje Strategije za borbu protiv korupcije i organizovanog kriminala 2012: 98; Vlada Crne Gore, Četvrti izvještaj o realizaciji mjera iz Inoviranog Akcionog Plana za sprovođenje Strategije za borbu protiv korupcije i organizovanog kriminala 2012: 102; Vlada Crne Gore, Peti izvještaj o realizaciji mjera iz Inoviranog Akcionog Plana za sprovođenje Strategije za borbu protiv korupcije i organizovanog kriminala 2012: 104).

Additionally, concerning the Union’s requirement towards enhancing the institutional and administrative capacity of law enforcement bodies in order to provide credible track- records of (financial) investigation, prosecution and conviction in corruption cases at all levels, 10 police officers were employed with the Police Directorate. Moreover, additional equipment, namely computers, encryption equipment, equipment for conducting investigation, specialized vehicles, etc., was purchased for criminal police, thus aiming to provide better conditions for detection and investigation of high-level corruption cases (Prilog izvještaju Evropske komisije o napretku Crne Gore za 2012. – za period 1. septembra 2011 – 25. aprila 2012: 78; Vlada Crne Gore, Četvrti izvještaj o realizaciji mjera iz Inoviranog Akcionog Plana za sprovođenje Strategije za borbu protiv korupcije i organizovanog kriminala 2012: 87, 90). Also, certain improvements over strengthening administrative and institutional capacities of the law enforcement bodies were particularly seen in providing 24 professional trainings of financial investigation by the JTC and Police Academy for more than 132 participants (Vlada Crne Gore, Treći izvještaj o realizaciji mjera iz Inoviranog Akcionog Plana za sprovođenje Strategije za

173 borbu protiv korupcije i organizovanog kriminala 2012: 104; Vlada Crne Gore, Četvrti izvještaj o realizaciji mjera iz Inoviranog Akcionog Plana za sprovođenje Strategije za borbu protiv korupcije i organizovanog kriminala 2012: 110; Vlada Crne Gore, Peti izvještaj o realizaciji mjera iz Inoviranog Akcionog Plana za sprovođenje Strategije za borbu protiv korupcije i organizovanog kriminala 2012: 111).

Finally, in reference to the EU’s request to improve the inter-agency cooperation and exchange information between law enforcement bodies (police and prosecutors), the state authorities achieved some progress in introducing the Analysis of anti-corruptive institutional framework and Analysis of effects of establishment of the Agency for fight against the corruption (Vlada Crne Gore, Peti izvještaj o realizaciji mjera iz Inoviranog Akcionog Plana za sprovođenje Strategije za borbu protiv korupcije i organizovanog kriminala 2012: 106).

Based on the descriptive analytical framework regarding the EU transformative power on domestic changes in combating corruption of high-level corruption cases, the process of Europeanization of Montenegro was primarily characterized as the EU-driven and substantially dependent on various sets of conditions: determinacy of EU conditions, the size and the speed of the rewards, the credibility of threats, and the size of the adoption costs. Therefore, based on the defined mechanisms of the externally driven initiatives, the Union demonstrated deficient reinforcing effects over strengthening the anti-corruption repression measures in Montenegro during the pre-negotiation phase (Schimmelfennig and Sedelmeier 2005: 10-17; Sedelmeier 2011: 15; Cebelis 2016: 20).

5.2.1.2 Negotiation stage

Based on the Commission’s positive assessment of Montenegro’s fulfilment of 7 key priorities, including rule of law requirements, the European Council endorsed the decision to open accession negotiations with Montenegro on 29 June 2012 (European Council 2012: 4). In line with the Council’s conclusions from December 2011 inviting the Commission to start the process of analytical framework of analytical examination of the acquis with Montenegro on the Chapters 23 and 24, this body launched the Screening Report Montenegro on Chapter 23 – Judiciary and Fundamental Rights on 12 November 2012.

Overall, the Commission agreed that Montenegro demonstrated good awareness of the EU’s strategic and policy framework in combating corruption and conducted reforms towards

174 adoption of the acquis and alignment with the European policies (European Commission 2012d: 18). However, the Commission noted that ‘corruption in Montenegro is prevalent in many areas and continues to be serious cause of concern’ (European Commission 2012d: 22). Although the country demonstrated some progress in strengthening its legal and institutional framework, the implementation of reforms remained deficient. Thus, the Commission outlined that further efforts were needed in ensuring a solid track record of investigations and convictions in corruption cases.

In line with the views above, the screening report originally recommended that Montenegro should adopt one or more Action Plan(s), addressing in particular following problems:

“Preventive action against corruption: • Strengthen and possibly review the institutional framework for the fight against corruption. In particular, DACI's competences need to be upgraded and its capacities reinforced. • Improve the system of asset declarations, strengthening in particular the supervisory competencies and the professional capacity of the Commission for prevention of conflict of interest to ensure effective and substantial checks on assets, and introduce measures preventing conflicts of interest going beyond holding double public offices (such as public decision makers holding stakes in private companies etc.). • Review the rules of procedure of the public administration, including appointment and internal control, to fully integrate prevention of corruption and conflicts of interest aspects. • Improve the system of political party funding, ensuring reliable reporting as well as effective supervision and sanctioning powers by an independent authority. Strengthen the capacities of the monitoring bodies (the State Audit Institution (SAI) and the State Election Commission) and ensure a clear division of tasks and cooperation framework. Accounting obligations for political parties should be increased and all in-kind donations should be reported. The recommendations of GRECO should be followed-up. • Ensure effective implementation of free access to information rules, inter alia, with regard to sensitive information with economic value. The provisions of the Law on prevailing public interest need to be clarified. Appropriate interaction between the Law on Free Access to Information and the Laws on Protection of Personal Data and on Data Secrecy should be ensured. • The control system for public procurement is to be strengthened as well as the supervision of implementation of awarded contracts. Anti-corruption measures at local government level need to be stepped up. • Develop specific measures to tackle corruption in particularly vulnerable areas, such as those identified in the findings of the risk assessment of July 2011. For these areas, separate Action Plans could be envisaged. Ensure that risks assessments are being used systematically. • Strengthen the Parliament's role in fighting corruption by stepping up supervision of the executive. The Parliament should also pay specific attention to anti-corruption issues when revising and improving the legal framework. Ensure a thorough integrity system within the Parliament. • Ensure that NGOs are involved in the anticorruption agenda.

175

Repressive action against corruption:

• Ensure independent, effective specialised investigation/prosecution bodies, in particular through:

o Constitutional and legal amendments strengthening the independence of the judiciary (see above) and to protect all investigative bodies from (potential) political pressure. o Provision of adequate resources (financial resources, staffing etc) to all investigation and judicial authorities involved in the fight against corruption, making corruption cases priority matters. A review of the definition of "high level corruption" in view of the SSPO's area of competence would be recommendable. o Ensure that prosecutors have real-time access to relevant databases and sufficient capacity to effectively implement of the Criminal Procedure Code. o Review the competences of the Special Investigative Team and ensure its access to relevant databases. o Ensure sufficient training, well qualified staff and international exchange of expertise to allow for modern investigative techniques to be applied efficiently and on a regular basis. Similar training must be ensured for judicial authorities.

• Amend the Criminal Procedure Code where needed and ensure its effective implementation. • Improve the use of financial investigations, possibly through establishing a team of highly qualified investigators for this purpose. • Improve the cooperation and information exchange between authorities involved in the fight against corruption, including also tax and other only indirectly linked authorities. • Improve the collection of unified statistics on corruption, distinguishing clearly between different types of criminal activities and allowing for a detailed assessment of length of the cases, outcome etc. • The procedures for seizure, confiscation and management of proceeds of crime need to be further regulated and the professional capacity of the relevant State Agency strengthened. • Take the necessary steps to make the system of whistle-blower protection more effective in practice. • Review the system of immunities and ensure that effective procedures for lifting of immunities are in place. • Review the procedure for closure of criminal cases and consider possibilities for appeals or complaints.“ (European Commission 2012d: 25-27)

After more than 3 months since the introduction of the Screening Report for Chapter 23, the Commission launched the 2012 Montenegro Progress Report followed by the EU Enlargement Strategy 2012-2013 on 10 October 2010.47 Evidently, the Commission outlined Montenegro having made some progress towards strengthening its strategic framework, legal

47 Following the introduction of the 2012 Commission’s reports and the Council’s conclusion, the European Parliament adopted the Resolution on the 2012 Montenegro Progress Report on 18 April 2013. For more details: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-%2f%2fEP%2f%2fTEXT%2bTA%2bP7-TA-2013- 0185%2b0%2bDOC%2bXML%2bV0%2f%2fEN&language=EN.

176 system, and institutional set-up in the fight against corruption, particularly in the area of prevention, suppression, and combating corruption (European Commission 2012b: 12; European Commission 2012c: 11-12). However, the Commission also remarked on corruption remaining prevalent in many areas and continuing to be a matter of serious concern, consequently allowing organized crime groups to infiltrate both public and private sector. Also, widespread corruption remained a serious hindrance to law enforcement investigation of organized crime (European Commission 2012c: 12, 48).

The Commission primarily emphasized the importance of effective implementation of the newly adopted legislations in the areas of political parties funding, prevention of corruption, through strengthening the capacity of supervisory institutions such as the State Election Commission and the Commission for the Prevention of Conflict of Interest (European Commission 2012c: 12). In addition, as it was the case with previous Progress Reports, the Union highlighted the need of further improvement of state capacities in order to effectively combat corruption by noting that ‘the capacity of prosecutors and police to conduct financial investigations, trace criminal assets and present related evidence before the courts needs to be improved.’ Furthermore, the EU indicated that inter-agency cooperation and information exchange between law enforcement bodies (police and prosecutors) needed to be further developed. Moreover, the Commission indicated that at that time there were no corruption cases in which seizure or confiscation of assets was ordered. Finally, as it was the case with the previous report, this document also confirmed that judicial independence remained a matter of concern, consequently affecting the country’s will to fight corruption (European Commission 2012c: 12).

Although the country showed some results on investigating, prosecuting and finally convicting corruption cases, the Union still raised concerns over combating corruption in terms of high-level cases. Apparently, the Commission stated that low level of final convictions of high-level cases remained a widespread problem especially due to ‘the fact that all of the high- level corruption cases have been brought on the basis of evidence provided by a third party remains a matter of concern’ (European Commission 2012c: 48). Therefore, the Commission recommended that the credible track record of fighting against corruption needed to be steadily built up, especially in areas of investigation and conviction of high-level corruption cases (European Commission 2012b: 12; European Commission 2012c: 12).

177

The 2013 Montenegro Progress Report accompanied with the EU Enlargement Strategy 2013-2014, which came into force on 16 October 2013, thus emphasized that corruption remained prevalent in many areas and hence a matter of serious problem, whereas infiltration of organised crime into public and private sectors was a serious cause for concern, particularly in the following areas extremely vulnerable to corruption: construction and spatial planning, education, healthcare, and public procurement (European Commission 2013b: 9, 40).48 The Commission confirmed that Montenegro had by that moment made some progress in its fight against corruption, however, it also clearly emphasized the necessity of further strengthening of the legal, institutional and strategic framework, improving state capacities and providing credible track record of implementation of anti-corruption measures, particularly in areas of investigation, prosecution, and final conviction of high-level corruption cases (European Commission 2013a: 25; European Commission 2013b: 38-40).

Primarily, the Commission underlined the necessity of solving a number of short falls regarding the implementation of current legislation on political party financing, in particular in terms of preventing abuse of state resources for electoral campaigns, enforcing rules on party and campaign financing, ensuring effective monitoring system before and during election campaigns, and reinforcing independence of financial and human resources of the state election commission in order to ensure effective exercise of its supervisory and monitoring function (European Commission 2013b: 38).

In addition, the Union also indicated that strengthening the institutional framework in preventing corruption, especially in terms of control of conflict of interest and check of asset declarations. In this sense, the EU remarked that capacities of the Commission for the Prevention of Conflict of Interest needed to be further improved, but also stated that this institution was to ‘carry out its tasks in a more proactive manner, and also focus on uncovering cases of illicit wealth through systematically cross-checking declarations of assets with data from other databases, on the basis of risk assessments’ (European Commission 2013b: 39). Moreover, the Commission clearly underlined that special attention needed to be oriented towards the Commission on checking conflict of interest ‘where there is a risk of public officials taking official decisions that benefit themselves or persons close to them.’ In line with

48 Following the Commission’s main recommendations within the 2013 Montenegro’s Progress Report in the area of fight against corruption, the European Parliament adopted the Resolution on the 2013 Montenegro Progress Report on 6 February 2014. For more details: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=- %2f%2fEP%2f%2fTEXT%2bTA%2bP7-TA-2014- 0104%2b0%2bDOC%2bXML%2bV0%2f%2fEN&language=EN .

178 this view, the Union specified that dissuasive penalties needed to be applied if there ever was a violation of conflict of interest or asset declarations (European Commission 2013b: 39).

By the same token, the EU pointed out that institutional and operational capacity of prosecutors, judges and police to fight corruption was still insufficient at that time. Furthermore, special investigative team in the special prosecution office still considerably lacked direct access to relevant databases, as well as access to human and financial resources. Moreover, the capacity to conduct financial investigations in corruption cases needed to be enhanced (European Commission 2013b: 40). Finally, the Commission raised concerns over track record of investigation being established, as well as over prosecution and conviction in corruption cases by indicating that results on the ground were quite limited. Thus, the Union noted that were ‘no final convictions in high-level corruption cases’ and ‘no corruption cases in which seizure of assets has been ordered’ (European Commission 2013b: 40).

The 2014 Montenegro Progress Report accompanied by the EU Enlargement Strategy 2014-2015, which was enacted on 8 October 2014, confirms overall that corruption remains prevalent in many areas and continues to be a serious problem due to criminal infiltration into the political, legal and economic system (European Commission 2014a: 30; European Commission 2014b: 2-3).49 The Commission acknowledged that although certain results were seen in improving strategic, legal, institutional, and administrative framework, the progress in combating corruption remained limited and therefore it required implementation of deep and lasting reforms (European Commission 2014b: 11).

Correspondingly, in the area of prevention measures in the fight against corruption, the Union underlined that Montenegro has by that time made limited progress in strengthening its legal and institutional anti-corruption measures. Therefore, the Union suggested that further efforts had to be conducted towards improving the legal and institutional set-up, particularly by establishing and developing the anti-corruption agency. The EU noted that ‘the anti- corruption agency needs to have a clear and well-defined mandate and effective powers to carry out its tasks’ and ‘it needs to enjoy the necessary independence, have sufficient resources as

49 Following the Commission’s main recommendations within the 2014 Montenegro’s Progress Report in the area of the fight against corruption, the European Parliament adopted the Resolution on the 2014 Montenegro Progress Report on 11 March 2015. For more details: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-%2f%2fEP%2f%2fTEXT%2bTA%2bP8-TA-2015- 0063%2b0%2bDOC%2bXML%2bV0%2f%2fEN&language=EN

179 well as access to all relevant information held by other institutions’ (European Commission 2014b: 40).

In line with adopted amendments to the Law on Political Party Financing, the Commission indicated that additional efforts were particularly needed in bringing the legislative fully in line with the European standards and in developing track record of effective implementation. In addition, concerning the check of asset declaration, the Commission indicated visible shortcomings in terms of implementation. Hence, the Union indicated that the then system of asset declaration was not effective, and sanctions did not represent deterrent due to the fact that the Commission for checking asset declarations was not connected to databases of all relevant financial institutions and, therefore, it lacked power to access information held by financial institutions to check for illicit enrichment (European Commission 2014b: 40-41). Furthermore, in regard to control of conflict of interest, the Commission underlined that checks were limited in the area of incompatibility of functions, respectively in terms of public officials possibly using the state system to benefit themselves and individuals close to them (European Commission 2014b: 40-41).

In reference to repressive measures in the fight against the corruption, the Union noted that institutional and operational capacities of prosecutors, judges and police to combat corruption remained insufficiently developed. Also, further efforts were needed in improving administrative capacities of the Special Prosecutor’s Office. Moreover, additional specialised training was requested at all levels (European Commission 2014b: 42). By the same token, the Commission also underlined necessity of improving capacity of systematic financial investigations and further developing inter-agency cooperation, especially between prosecutors and police in pre-trial investigation (European Commission 2014b: 42).

The Union indicated that the country had by that time already showed limited progress in providing the credible track record of investigation, prosecution, and final conviction in corruption cases, especially in terms of high-level corruption. Also, the EU outlined ineffectiveness of law enforcement bodies to deal with high-level corruption by stating that ‘a high rate of investigations into reported corruption-related offences never results in charges’ (European Commission 2014b: 43). Moreover, lack of will to investigate was also seen in the lack of financial investigation, as well as issues regarding the instrument of seizure and confiscation of assets (European Commission 2014b: 43).

180

The 2015 Montenegro Progress Report followed by the Enlargement Strategy 2015- 2016, which was launched on 10 November 2015, confirmed that Montenegro achieved some level of preparation in the fight against corruption (European Commission 2015a: 18; European Commission 2015b: 14).50 Although the Commission acknowledged that certain progress was made by the state authorities in strengthening legal and institutional framework, but that corruption remained widespread in many areas and thus continued to be a serious problem.

Following the newly established methodological framework introduced by the Commission, the EU primarily acknowledged that the progress made in strengthening Montenegrin legislative and improving institutional set-up in fighting corruption was considerable, but that additional efforts were particularly needed in completing these reform processes. Moreover, although certain results were visible in terms of improving legal and institutional framework, the convincing track record in combating corruption remained deficient. In this sense, the Commission continuously emphasized that Montenegro’s track record in credible investigation, prosecution and final convictions in corruption cases, in particular regarding high-level corruption, remained limited. By that time there had been no final convictions in high-level corruption cases (European Commission 2015a: 18; European Commission 2015b: 14). Therefore, the Commission primarily indicated the need of making further efforts in enhancing Montenegrin institutional framework in combating corruption by establishing a fully operational anti-corruption agency by 1 January 2016 due to fact that ‘the existing supervising institutions are not on the whole taking a proactive approach and their administrative capacity has not been strengthened as required’ (European Commission 2015b: 14-15).

In regards to prevention of corruption, the Commission clearly underlined the necessity of improving track records in the prevention of corruption (control of conflict of interest, check of asset declarations, political parties and election campaign financing, as well as strengthening the whistle-blowers), including effective penalties for irregularities. In addition, concerning the repression of corruption on law enforcement level, the Commission noted that institutional and operational capacity of prosecutors, judges and police to fight corruption was insufficiently developed, and therefore, cooperation between police and prosecution in pre-trial

50 In regards to the 2015 Montenegro Progress Report accompanied with the EU enlargement strategy, the European Parliament adopted the Resolution on 2015 Montenegro Progress Report on 10 March 2016. For more details: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-%2f%2fEP%2f%2fTEXT%2bTA%2bP8-TA- 2016-0092%2b0%2bDOC%2bXML%2bV0%2f%2fEN&language=EN.

181 investigations needed to be improved (European Commission 2015b: 14-15). Finally, the Commission urged Montenegro to establish convincing and credible track records in combating corruption, in particular in high-level cases and increase the capacity to carry out financial investigations, bearing in mind the fact that the state authorities had demonstrated limited progress by that time (European Commission 2015b: 14).

Similarly, as it was the case with the previous documents, the 2016 Montenegro Progress Report together with Enlargement Strategy 2016-2017 concluded that Montenegro achieved some level of preparation in the fight against corruption.51 However, despite some by establishing the Anti-Corruption Agency that started working on 1 January, the Commission emphasized that corruption remained prevalent in many areas and continued to be a serious problem (European Commission 2016a: 19; European Commission 2016b: 15).

Primarily, the Commission also acknowledged that certain results were made in introducing a track record in the area of repression of corruption, particular in relation to high- level corruption, but Union also noted that ‘the track record both on successful investigations and convictions and on prevention of corruption remains limited’ (European Commission 2016a: 19; European Commission 2016b: 15). Additionally, following the recommendations stipulated within the Progress Report, the Commission primarily urged the Montenegrin state institutions to improve their operational capacity, particularly by developing institutional and operational capacity of prosecutors, judges, and police, cooperation between police and prosecution in pre-trial investigations, financial investigation skills of police and prosecutors, and human and material resources of the Special Prosecutor`s Office, so that they are able to fulfil their mandates effectively (European Commission 2016b: 15-16).

Furthermore, the Union also indicated the necessity of increasing the state capacities in order to carry out financial investigations, and primarily to establish convincing track records on seizure and confiscation of criminal assets (European Commission 2016b: 15). Finally, the Commission outlined significance of improving track records in the areas of repression and prevention of corruption (in particular towards control of conflict of interest, checking of asset

51 Following the introduction of Montenegro 2016 Progress Report, accompanied by the EU enlargement strategy and its main challenges for 2015-2016, the Parliament adopted the Resolution on the 2016 Montenegro Progress Report on 16 March 2017. For more details: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=- %2f%2fEP%2f%2fTEXT%2bTA%2bP8-TA-2017- 0094%2b0%2bDOC%2bXML%2bV0%2f%2fEN&language=EN.

182 declaration, political parties and election campaign financing, and strengthening the whistle- blowers), including imposing negative sanctions (European Commission 2016b: 15).

Prevention of corruption

At the bottom-up level, following the completed screening process of Montenegrin legislations within area of the fight against corruption, the Commission summarized achievements, improvements, and also provided further reform recommendations into the Screening Report for Chapter 23 and submitted it on 25 December 2012 to the newly established Working Group for Preparation of Negotiations on the Accession of Montenegro to the European Union in the area of acquis related to the negotiation Chapter 23 - Judiciary and Fundamental Rights (hereinafter referred to as Working Group 23) (Akcioni plan za Poglavlje 23. pravosuđe i temeljna prava 2013: 4). Based on the single interim benchmark introduced within the Screening Report by the Commission, almost one year after the official start of the accession negotiations the Government introduced the Action Plan for Chapter 23 – Judiciary and Fundamental Rights on 27 June 2013.52 Correspondingly, through the introduction of the Action Plan in June 2013, Montenegro addressed the last requirement in order to officially open the process of the accession negotiation with the EU, thus consequently opening the possibility to start fulfilling the recommendations stipulated within the Screening Report Montenegro for Chapter 23.

Originally, in line with the first recommendation of the Commission over improving preventive actions against corruption as stipulated within the Screening Report and 2015 Montenegro Progress Reports, particularly so in strengthening and reviewing the institutional framework for the fight against corruption, the Parliament adopted the Law on Agency for Anti- Corruption on 9 December 2014 in line with expert opinion from the European Commission foreseeing implementation of the enacted to start on 1 January 2016, together with the established Agency for preventing corruption. In particular, the Law defined the following competences of the Agency, namely, coordination, supervision and monitoring of the implementation of strategic documents for the fight against corruption with the supporting Action Plan, direct implementation and supervision over the Law on Prevention of Conflict of Interests and the Law on Financing of Political Subjects and Election Campaigns, protection

52 The Action Plan overall represents the most comprehensive document so far in the area of reform of combating corruption, and it provides for realization within plans that are being identically prescribed in other national documents, such as: Strategy for the Fight against Corruption and Organized Crime, Action Plan for implementation of Strategy for the Fight against Corruption and Organized Crime for 2013-2014, and others.

183 of whistle blowers, etc. (European Commission 2012d: 25, European Commission 2015b: 14- 15; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, mjera 2.1.1.3 2013: 71; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, izvještaj broj 5, decembar 2014: 125).

In addition, the state provided financial and technical means, and personnel also for the work of the Agency by means of sufficient financial funds, and adoption of the new Rules of procedures on organization and systematization of working places by increasing the number of working positions from 55 to 60. Due to complete fulfilment of free working places in the Agency and development of IT system in terms of its being a continuous process, the measure was evaluated as partly realized by the Government (European Commission 2012d: 25; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, mjera 2.1.1.4 2013: 73; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj – jul – decembar 2016, januar 2017: 46-47).

Concerning the second recommendation as stipulated within the Screening Report and 2012, 2013, 2014, 2015 Montenegro Progress Reports and referring to improvement of the system of assets declaration, strengthening in particular supervisory competences and professional capacity of the Commission for Prevention of Conflict of Interest (CPCI) in order to ensure effective and substantial checks on assets and introduce measures for preventing conflicts of interest going beyond holding double public offices, the Parliament adopted Amendments to the Law on the Prevention of Conflict of Interest on 16 December 2014. According to the Action Plan provisions, the enacted law was to primarily define extension of the categories of persons obliged to report property, work of officials in managing boards of state owned companies, without remunerations, and precisely prescribed authorities in the checking of asset declarations and checking asset declarations of public officials (European Commission 2012d: 25, European Commission 2012c: 12; European Commission 2013b: 38- 39; European Commission 2014b: 40-41; European Commission 2015b: 14-15; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, mjera 2.1.2.2 2013: 73).

In addition, in order to prevent corruption, the CPCI improved the system for efficient checks of data accuracy provided from the reports of public officials in March 2015 through the new form of checks of data assets. Furthermore, additional activities were conducted in establishing the Commission’s software able to provide automatic networking and access to databases of bodies and institutions on assets and incomes of public officials. Moreover, further measures were introduced in providing trainings for employees in the Commission and Agency

184 for Anti-Corruption Initiative in terms of control competences and use of data bases prescribed within the Law (Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, mjera 2.1.2.4, 2.1.2.5, 2.1.2.6, 2013: 79-81; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj – jul – decembar 2016, januar 2017: 13-16; 57-61).

In regards to the third suggestion as mentioned in the Screening Report and 2012, 2013, 2014, 2015 Montenegro Progress Reports, particularly so in improving the system of funding political parties by ensuring reliable reporting, effective supervision and sanctioning powers by an independent authority, and strengthening capacities of the monitoring bodies such as the State Audit Institution (SAI) and the State Election Commission (SEC) in accordance with the GRECO recommendations, the Parliament adopted the Law on Financing Political Entities and Election Campaigns on 16 December 2014. In particular, the enacted law clearly defined competencies of the SAI and the SEC in law implementation area, involvement of independent audit houses regarding audit of reports’ sections, prescribing the duty of third parties to submit information required upon requests by competent authorities, defining investigative powers of competent authorities, and the promoted system of sanctions (European Commission 2012d: 25, European Commission 2012c: 12; European Commission 2013b: 38-39; European Commission 2014b: 40-41; European Commission 2015b: 14-15; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, mjera 2.1.4.1 2013: 92; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, izvještaj broj 5, decembar 2014: 196-197).

Additionally and in accordance with the new law, Montenegro adopted relevant secondary legislation regulating the use of public resources for political subjects’ activities and election campaigns, the manner of keeping business books of political entities and determining the manner of regular and transparent reporting of revenues, expenditures, assets, liabilities, and also the sources of funds of political entities. In this regard, the Agency adopted the Rules on the manner of calculation and reporting of non-cash attachments to political entities; Guidelines on the report form on origin, the amount and structure of collected and used funds from public and private sources for election campaigns for election of MPs’ and aldermen; Instruction on the form of report on the origin, amount and structure of collected and spent funds from public and private sources for election campaign for election of parliament representatives and members; Guidelines on the manner and procedure for filing and solving complaints filed during election campaign; rules on how to calculate and report on non-cash attachments to political entities; Rules of procedures on the manner of exercising control of political subjects and control and supervision during election campaign; Guidelines on the

185 content of report on contributions of legal and natural persons to political parties during election campaigns; and guidelines to the report form on origin, the amount and structure of collected and exploited funds from public and private source for election campaign for Election of the President of Montenegro (Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, mjera 2.1.4.2 2013: 92-93; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj – jul – decembar 2015, januar 2016: 115-116).

Finally, additional activities were being oriented towards ensuring financial, staff and technical resources for the work of the Administrative and Technical Services of the SEC and the SAI through amendments of the Rulebooks on internal Organisation and Job Descriptions of the SEC and SAI, thus specifying authorization and competence of staff, ensuring adequate budgetary funds and equipment for the Administrative and Technical Services of the State Electoral Commission and the State Audit Institution, and drafting a specialization plan and continuous training plan in accordance with the given competences. In that respect, the SAI adopted in February 2015 the Rulebook on internal organisation and systematization based on which one person in the SEC and 8 persons in the SAI got employed. Also, in accordance with the rulebook, the SAI employed 10 out of 13 individuals for controlling Montenegrin political parties. Additional efforts were being directed towards ensuring accommodation capacities, financial needs and forming expert service of the SAI. Furthermore, based on the draft budget for 2016, there was the total of 3.96 million EUR, which meant the increase of 2.51 million EUR when compared to the previous year. Likewise, based on the draft budget for 2016 the SEC gained the funds in total of 0.24 million EUR for personnel and technical development (Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, mjera 2.1.4.3 2013: 93; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, izvještaj broj 5, decembar 2014: 202-207).

Finally, concerning the last of the Commission’s recommendations as stipulated within the Screening Report, particularly so in ensuring that the NGOs were involved in the anticorruption agenda, the legal body aimed to include NGO representatives in the Anti- Corruption Committee, in line with set rules and procedures. In that regard, the Anti-corruption committee held 11 sessions in 2015 attended by 3 NGO representatives (Institute Alternative, Centre for Civic Education, and MANS). In addition, in the period between 1 January and 30 June 2016, the Anti-corruption committee held 3 sessions attended by 2 NGO representatives (Institute Alternative and MANS). There was no information in regards to NGO attendance at the Anti-corruption committee in the period between 1 July and 31 December 2016 (European Commission 2012d: 26, Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, mjera

186

2.1.9.3 2013: 114; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj – jul – decembar 2015, januar 2016: 186; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj – januar – jun 2016, jul 2016: 108).

Given the insights of empirical descriptive analysis, it seems that the logic of Europeanization through the externally driven compliance by conditionality has remained the same in the negotiation phase. Following the theoretical concept within the external incentives model, apart from determinacy of EU conditions, it appears reasonable to assume that the declining trends in strengthening preventive anti-corruption measures in Montenegro has primarily been the reflection of downgrading tendencies in terms of the size and speed of the rewards, credibility of conditionality, and the size of the adoption costs (Schimmelfennig and Sedelmeier 2005: 10-17; Sedelmeier 2011: 15; Cebelis 2016: 20).

Investigation, prosecution and final conviction of high-level corruption cases

Concerning the first of the Commission’s recommendations over repressive action against corruption stipulated within the Screening Report and 2014 and 2016 Montenegro Progress Reports, particularly so in ensuring independent, effective specialised investigation/prosecution bodies, the Parliament adopted the Law on Special Prosecutor’s office on 26 February 2015, thus establishing a separate Special Prosecutor’s Office for fight against organized crime, corruption, terrorism and war crimes in order to process cases of organized crime and corruption, especially high-level corruption cases.53 Furthermore, strengthening staff capacities of the Division for the Suppression of Corruption, Organized Crime, Terrorism and War Crimes was conducted by employing 28 individuals (European Commission 2012d: 26, European Commission 2014b: 42; European Commission 2016b: 15; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, mjera 2.2.1.4 2013: 119-121; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj – januar – jun 2015, jul 2015: 115).

Concerning the second recommendation of the Commission as prescribed within the Screening Report, especially in regards to amending the Criminal Procedure Code where needed and ensuring its effective implementation, the Parliament adopted Amendments to the

53 Except for the Special’s Prosecutor’s Office, two specialised divisions merged in high courts into one for the purpose of centralising competences for criminal offences of organised crime, corruption, terrorism and war crimes. Detailed activities, competent bodies and deadlines are envisaged by the Plan of rationalization of the judicial network.

187

Criminal Procedure Code on 7 July 2015 (European Commission 2012d: 26, Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, mjera 2.2.2.2. 2013: 131; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj – jul – decembar 2015, januar 2016: 208).

In addition, in reference to the third of the Commission’s demands over strengthening repressive action against corruption as prescribed within the Screening Report and 2012, 2013, 2014, 2015, 2016 Montenegro Progress Reports, in particular over the use of financial investigation, possibly by establishing a team of highly qualified investigators for this purpose, the Parliament adopted the Law on Confiscation of Asset Benefits Acquired by Criminal Activities on 9 November 2015 governing the procedure of conducting financial investigations and the institute of confiscation of property (European Commission 2012d: 26, European Commission 2012c: 12; European Commission 2013b: 40; European Commission 2014b: 42; European Commission 2015b: 14-15; European Commission 2016b: 15; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, mjera 2.2.3.2 2013: 133; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj – jul – decembar 2015, januar 2016: 210). In addition, further activities were being conducted towards establishing specialised organisational units within the Criminal Investigation Police through changes in organisation and job description. In this sense, in 2014 the Group for conducting financial investigations, highly-technical crime, and human trafficking was established with 5 individuals employed, the Group for prevention of smuggling, human trafficking and illegal migrations with 3 employees, the Group for prevention of high-tech crime with 1 employee, and the Group for prevention of terrorism, weapon smuggling and explosive materials with 3 individuals. Finally, the JTC continuously provided trainings for employees in the special unit of the Police Administration for implementation of financial investigations, as well as the multidisciplinary team and prosecutors and judges in combating corruption (Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, mjera 2.2.3.3, 2.2.3.5 2013: 133-134; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, izvještaj broj 5, decembar 2014: 367-368, 371-373; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj – januar – jun 2015, jul 2015: 129-130; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj – jul – decembar 2015, januar 2016: 212-213; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj – januar – jun 2016, jul 2016: 125-127; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj – jul – decembar 2016, januar 2017: 140-143).

188

In respect to the third suggestion over enhancing repressive actions against corruption as stipulated within the Screening Report and 2012 and 2016 Montenegro Progress Reports, especially when it comes to improving cooperation and information exchange between authorities involved in the fight against corruption, including also tax and other only indirectly linked authorities, the state institutions signed the Protocol on Cooperation of the Supreme State Prosecutor’s Office, Ministry of Interior and Police Directorate in pre-trial and criminal procedures on 9 April 2014. Furthermore, additional activities were taken towards signing agreements between Montenegro and other states, such as Tax Administration, Customs Administration, Harbour Master Office, on exchange of information necessary for collecting data in pre-trial and criminal procedure. In that respect, Tax Administration and Police Directorate signed an Agreement on standard operative procedures on 1 June 2015, and additionally the agreement was signed between Ministry of Interior, Police Directorate and Supreme State Prosecutor’s Office on providing conditions for smooth operation of the State Prosecutor’s Office by Police Administration, as well as the agreement between Ministry of Interior, Police Directorate and Supreme State Prosecutor’s Office on smooth operation of courts and maintaining order. In 2016, there was no agreement of this type signed (European Commission 2012d: 26, European Commission 2012c: 12; European Commission 2016b: 15; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, mjera 2.2.4.1, 2.2.4.2 2013: 135- 136; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, izvještaj broj 5, decembar 2014: 377-380; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj – jul – decembar 2015, januar 2016: 215).

In respect to the next suggestion of the Commission on enhancing repressive actions against corruption stipulated within the Screening Report and 2012 Montenegro Progress Report, especially when it comes to procedures for seizure, confiscation and management of proceeds of crime that needed to be further regulated and professional capacity of the relevant State Agency strengthened, the Parliament adopted the Law on Confiscation of Asset Benefits Acquired by Criminal Activities in 2015 (European Commission 2012d: 26, European Commission 2012c: 12; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, mjera 2.2.6.2 2013: 139; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj – jul – decembar 2015, januar 2016: 217).

In addition, electronic register of seized property was established in 2013 with information on the number of decisions, the name of the court or body responsible for

189 conducting the proceedings, the type and the estimated value of the property, and the person from whom the property had been seized. Furthermore, additional activities were conducted in strengthening administrative capacities of the Public Property Administration through increase in number of jobs for civil servants for management and custody of the temporarily seized or permanently confiscated property by recruiting two civil servants. Finally, further efforts were conducted towards strengthening the institutional framework by establishing the Directorate of assets on 8 March 2016 as an independent body is in charge of management and custody of seized property (Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, mjera 2.2.6.3, 2.2.6.5, 2.2.6.9 2013: 139-141; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj – januar – jun 2015, jul 2015: 133; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj – jul – decembar 2015, januar 2016: 217; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, izvještaj broj 5, decembar 2014: 391- 392; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj – jul – decembar 2016, januar 2017: 149-150).

Finally, in reference to the last of the Commission’s suggestions over strengthening repression against corruption stipulated within the Screening Report, particularly so in taking necessary steps to make the system of whistle-blower protection more effective in practice, the Parliament adopted Amendments to the Criminal Code on 30 July 2013, thus ensuring legal protection of whistle blowers. In addition, state reports indicated that there were no charges or accused and convicted persons since the introduction of the given legislation (European Commission 2012d: 26, Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, mjera 2.2.7.2 2013: 142-143; Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, izvještaj broj 5, decembar 2014: 151).

As it was the case with the previous sub-chapter, the empirical descriptive framework has revealed that the mechanism of Europeanization through the externally driven EU conditionality did not produce reinforcing effect in combating corruption in Montenegro during the negotiation phase. Obviously, based on the theoretical framework, apart from the determinacy of conditions, the ineffectiveness of the EU conditionality that follows the strategy of reinforcement by reward primarily depends on number of the cost-benefit calculations both with the EU and domestic level conditions: the size and the speed of the reward, the credibility of threats and promises, and the role of veto players and the size of the adoption costs

190

(Schimmelfennig and Sedelmeier 2005: 10-18; Sedelmeier 2011: 14-15; Cebelis 2016: 20; Gateva 2015).

In order to fully understand why the EU has failed to Europeanize Montenegro in the area of the fight against corruption during the whole integration stage, thorough empirical analysis shall be provided in the following section of this thesis.

5.2.2 Conditionally reluctant pressure by the EU and the country’s poor results in the fight against corruption

5.2.2.1 The pre-negotiation stage

Overall, the empirical findings in combating corruption in Montenegro during the pre- negotiation stage reveal two main observations. First, following the EU level, this phase is characterized by the Union’s intention to improve both anti-corruption dimensions, respectively the prevention of corruption and credible track record of investigation, prosecution, and final conviction of all cases, especially those of high-level corruption. In particular, concerning the Union’s pressure to improve the anti-corruption preventive measures this entity was paying a particular attention to strengthening legal framework and institutional framework of the Directorate for Anti-Corruption Initiative (DACI), the State Electoral Commission (SEC), and the Commission for Prevention of Conflict of Interest (CPCI) due to strong concerns over the lack of transparency in financing of political parties and election campaigns and inability of disclosure of various source of income, as well as the legal shortcomings of control of state assets with reference to conflict of interest of public officials. In addition, regarding the significance improving the state’s credible track record in investigation, prosecution, and final conviction at all levels, including high-level cases during the pre-negotiation stage, the Union demonstrated constant pressure on the target accession country to develop capacities of the institutional and administrative bodies, namely the Special Investigation Team (SIM), the Police Directorate’s internal unit, the Department for fight against organized crime, corruption, terrorism and war crimes in order to strengthen investigative capacities of the law enforcement bodies, especially in providing staff, skills, expertise, and equipment.

Second, on the domestic level Montenegro achieved limited progress in the fight against corruption during the pre-negotiation phase. Evidently, some progress was made in

191 strengthening the legal framework over preventive action against corruption through the adoption of the Amendments to the Criminal Procedure Code - CPC (2010) by introducing the concept of prosecutors’ investigation and the mechanism for combating corruption through the established measures of secret surveillance, as well as the legal provisions foreseeing confiscation of assets gained by criminal offenses (Informacija o realizaciji ključnih aktivnosti iz Akcionog plana 2011: 14). Furthermore, further efforts were taken in adoption of the Amendments to the Criminal Code (2011) prescribing corruptive criminal offences for bribery and trading in influence in line with the GRECO recommendations, and the Law on Civil Servants and State Employees (2011) introducing the institute for whistle blowers and their protection in cases of reporting corruption in public sector. In addition, certain progress was also noticed in the establishment of the institutional set-up in preventing corruption, notably the DACI, the SEC and the Commission, thus aiming to address the issue of financing of political parties and electoral campaigns, as well as tackling disclosure of source of income of public officials. Finally, some results were achieved in providing track record in investigation, prosecution, and final conviction of all level of corruption cases, especially high-level corruption, as well as enhancing administrative capacities of law enforcement bodies for detecting and investigation of corruption, particularly in terms of the development of skills, expertise, personnel, etc.

However, corruption remained widespread and continued to be a matter of serious concern during the pre-negotiation stage. First, the state demonstrated insufficiently satisfactory results in implementation and enforcement of its legal system and institutional framework in preventing corruption. Primarily, the risk of political corruption was observable in legal provisions of financing of political parties and election campaigns due to lack of transparency of political subjects in terms of gaining financial assets. Visibly, the monitoring institution for controlling finances of political subjects was insufficiently independent due to lack of legal provisions to control allocations made by private donations by focusing only on the state budget financial sources, and lack of imposition of disciplinary procedures and sanctions for non-compliance with the law with reference to providing accurate information of asset declarations in funding of political parties. Furthermore, the same problem of political influence of monitoring institutions is also observable within the conflict of interest area. Originally, serious concerns of political corruption were particularly visible in the then legal provisions based on which supervisory institution was being appointed by the Parliament and consequently lacked independent and impartial mechanisms to check asset declarations of

192 public officials. Furthermore, reasons for suspicion of existence of political influence on monitoring institution was observable within the then enacted law allowing members of the Parliament to hold their positions in state agencies and public companies while serving as parliamentary representatives at the same time.

In addition, although limited progress was made in strengthening the legal and institutional framework of preventing corruption before the country gained the candidate status for the EU membership, the empirical evidence also recognized visible shortcomings in improving the legal and institutional system in preventing anti-corruption actions after the state achieved the candidate status for the EU membership. Noticeably, the state authorities demonstrated substantial delay in adoption of legislation related to improvement of anti- corruption measures on financing of political parties and election campaigns and checking asset declarations of public officials, which was mainly reflected in existence of visible flaws in terms of implementation of the adopted laws in 2011. Originally, the state monitoring bodies, such as the SAI and SEC, did not possess effective independent check mechanisms able to use if political parties provided false or inaccurate data in regards to illegal allocation of financial funds mainly provided through private donations. This means that the supervising authorities did not hold effective sanctioning tools in order to introduce penalty measures for non- compliance with the legal requirements. Rather, the sanctioning system within the supervising authorities played a formal role in effective enforcement of checking of political parties’ funding. Thus, it would be reasonable to claim that disciplinary procedures within the monitoring state authorities were not efficiently put in practice. Additionally, the same situation was observable in the case of effectiveness of the Commission for prevention of the conflict of interest. Evidently, although new legal provisions further strengthened the control of the Commission’s role in checking submitted asset declarations of public officials, the empirical evidence outlined the substantial lack of legal provisions on illicit enrichment of state officials by not having access to state officials’ banking accounts its family members, as well as on the exchange of information between other state authorities in regards to empowerment of the conflict of interest. Hence, based on the empirical findings it might be grounded to argue the state supervising institution(s) were faced with substantial lack of independence and impartiality in order to assess asset declarations due to visible political influence to impose disciplinary provisions towards actors who were not aligned with the given laws. As a result, political corruption remained prevalent in many anti-corruption institutional mechanisms mostly due to insufficient implementation and enforcement of the adopted legal measures and

193 insufficient capacities of supervisory bodies to independently and impartially evaluate asset declarations of public officials while checking origin of financial sources used by political parties in their election campaign.

By the same token, the target accession country achieved overall poor reform results over providing credible track record in investigation, prosecution, and final convictions of all corruption cases, especially high-level cases during the pre-negotiation phase. Evidently, the state demonstrated substantially low progress in enhancing its administrative capacities for detecting and investigating corruption (SIM, Police Directorate internal control units, Unit for fight against the organized crime, corruption, terrorism and war crimes, etc.), particularly so in improving its investigate capacities through providing additional personnel, equipment, and expertise. In addition, law enforcement bodies, namely the Police Directorate, the State Prosecutors’ office, and the DACI contained substantial short flaws and loopholes in conducting financial investigation in order to repress corruption due to significant lack of expertise and adequate equipment, and undeveloped inter-agency cooperation and exchanging information between law enforcement bodies. Furthermore, the country also achieved insufficiently satisfactory results in providing concrete and sustainable track record in monitoring, prosecution and trial of corruption of all cases, including those cases of high-level priority. Obviously, although the state authorities took certain activities in order to strengthen the legal system in combatting corruption through the adoption of the new CPC and the Criminal Code, it was evident that the law enforcement bodies chiefly had issues with implementation and empowerment. In other words, the legal framework for repressing corruption was enacted, the administrative and institutional bodies were established, but sustainability of corruption reform through the credible track-record of implementation was missing. Therefore, it might be reasonable to claim that the law enforcement bodies could not have been satisfied with providing convincing and credible track records in combating corruption during the pre-negotiation phase, particularly so when it comes to the number of final convictions of high-level corruption cases, as well as the number of corruption cases in which seizure or confiscation of assets was ordered. In line with this assertion, a judge from the High Court was convicted in second instance to seven years of imprisonment for passive bribery in December 2010, and three individuals, at the time the Mayor of Budva, his Deputy, and a member of the Parliament, were sentenced in first instance to total of twelve years of

194 imprisonment for high-level corruption for abuse of official position and bribery.54 Furthermore, the High Court made only three decisions in regards to temporary confiscation of assets for criminal offense of money laundering and one decision on the Major of Ulcinj, thus sentencing him to pay 10.000, -EUR to charity due to criminal offense of abuse of official position. Therefore, given the research findings one may claim that the fight against corruption in relation to high-level cases remained extremely low during the pre-negotiation phase, mainly because of poor commitment of both investigate and prosecution law enforcement bodies to tackle prevailing corruption issues.

Thus, based on the empirical observations it seems credible to talk about certain tendencies existing within the area of combating corruption during the pre-negotiation stage. Primarily, Montenegro continuously experienced the same problem of implementation and reinforcement of adopted legal system and established institutional framework in order to progressively combat corruption. On the one hand, the country did provide convincing and sustainable results in adoption of the acquis and alignment with the EU policies in order to ensure sustainability of reform through the credible track record of implementation in prevention of corruption and in investigation, prosecution, and conviction of high-level corruption cases. On the other hand, unfulfilling certain Union requirements did not, although it should have, affect integration dynamics of the country in question. In particular, this claim can be tested by observing the Commission’s demands within 2007, 2008 and 2009 Progress Reports in which the Union continuously underlined the importance of solving the issue of prevention of corruption (amending the laws on conflict of interest and political party financing) and regression of corruption (credible track record of investigation, prosecution and conviction of high-level cases), which consequently resulted in state unwillingness to comply with the EU requirements. Thus, based on the empirical findings it might be reasonable to argue that the Union was inconsistent and ineffective in imposing its pressure towards the state in order to tackle the corruption issues. Instead, the EU induced negatively reinforcing effects on preventive and repressive actions against corruption, particularly so in adoption of legislation and alignment with the EU policies.

Taking into account two above-mentioned observations, the empirical evidence has revealed that Montenegro achieved insufficiently satisfactory results in addressing corruption

54 Mayor of Budva was sentenced to five years of imprisonment, his Deputy to four years of imprisonment, and a member of the Parliament to three years of imprisonment.

195 issues during the pre-negotiation stage. Overall, the country showed low level of progress in effective implementation and enforcement of adopted legislation and established institutions, which consequently resulted in weak results in strengthening prevention of corruption and low- level results in combating corruption, especially in regards to achieving concrete and sustainable results in prosecution and conviction of high-level corruption cases. Therefore, it is possible to claim that this integration phase is featured by the country’s poor results in addressing corruption requirements as one of the key conditions in addressing the Copenhagen political criteria and progressing in the accession process.

Hence, the empirical findings suggest that the Union had deficient impact on overall fight against corruption in Montenegro during the pre-negotiation phase. This particularly means that the Union external incentive pressure resulted in negatively reinforcing impact on empowerment of prevention of corruption and providing credible-track record on investigation, prosecution, and convictions of high-level corruption cases.

Visibly, the lack of the state’s compliance with EU’s corruption demands during the pre-negotiation stage may find a fertile theoretical ground within the Europeanization studies. In line with this assertion, Schimmelfenning and Sedelmeier (2005: 10-17) have defined the external incentives model as a EU-driven process (the EU induces the process of rule adoption), which uses the logic of consequences for the EU standards’ adoption, thus highlighting the role of rational actors who endeavour to maximize their own power and prosperity. The EU externally driven model relies on the EU conditional policy and its strategy of reinforcement by means of reward. Within this strategy, the Union rewards the target accession country in the form of assistance, association, or full membership if the country fully aligns with the EU criteria, or Brussels withholds the reward if the potential/candidate country fails to comply.

Empirically speaking, the EU conditional policy as a main mechanism for examining the effects of the EU transformative power on domestic changes through the introduction of strategy of reinforcement by reward may be applicable to the case study of Montenegro in the area of combating corruption during the pre-negotiation stage. Following the provided theoretical approach, Montenegro failed to implement anti-corruption legislation because the benefits of the EU rewards did not exceed the domestic adoption costs. Apparently, the candidate country did not align with the EU-driven rule of law (anti-corruption) pressure because the benefits of received rewards, namely advance in the accession process, aid, technical assistance, advice and twinning, etc., did not exceed the domestic adoption costs.

196

Instead, the candidate country demonstrated apparent lack of interest and unattractiveness to the EU benefits served as a stimulus for the country’s effective tackling of its wide-spread corruption issues (Schimmelfennig and Sedelmeier 2005; Sedelmeier 2011; Börzel and Risse 2012).

Primarily, the ineffectiveness of the Union’s conditionality in imposing anti-corruption changes in Montenegro primarily depended on a number of both external and internal factors, namely the size and the speed of the rewards, the credibility of conditionality, and the size of the adoption costs. Although the Union has clearly determined combating corruption conditions as a clear and formal demand in the accession process, thus helping Montenegro to pinpoint exactly what kind of requirements need to be fulfilled in order to receive the reward, the main problems are still hidden behind the size and the speed of the EU rewards, and the credibility of the EU conditionality. Obviously, the lack of the credible membership perspective for the entire Western Balkans, including Montenegro, and the Union’s reluctance to provide any commitment towards setting specific timetable for the accession of this country to the EU remained one of the most important reasons for the state’s failure to comply with the EU demands in the area of the fight against corruption. In particular, definition of the accession process as an open-ended one and not containing any clear timetable for advancement reward significantly undermined the need of the state to effectively address most complex corruption issues and to achieve sustainable and credible track-record of prosecution and investigation of high-level cases. In addition, the credibility of the Union’s threats in withdrawing the rewards if the country does not align with the anti-corruption conditions also represents one of the damaging factors of the given conditionality. Evidently, the target state did not truly believe the EU’s determination to introduce either explicit (financial sanctions) or implicit (delays of the accession advancement reward) sanctions even though the country showed substantial lack of interest to tackle corruption demands. Instead, the candidate state relied on inconsistent and insufficient Union approach in imposing the rule of law pressure. The Union’s conditional inconsistency of favouring certain international geo-political and geo-strategic perspectives, notably the active involvement of great powers in the Western Balkans region, instead of focus on compliance with the anti-corruption demands, helped to generate a habit in Montenegro to get the accession rewards without complying with the EU requirements (Schimmelfennig and Sedelmeier 2005; Pridham 2005; Vachudova 2005; Grabbe 2006; Sedelmeier 2011; Noutcheva and Aydin-Düzgit 2012; Gateva 2015).

197

Finally, Europeanization studies have discussed a number of domestic factors determining the domestic adoption costs, especially when it comes to the EU impact on domestic policy changes. Under this concept, the externally driven conditionality presumes that the size of the domestic adoption costs and their allocation among various domestic actors determines whether the national government complies with the EU conditions. According to the Europeanization literature, the domestic adoption costs are usually are highly expensive, and therefore substantial effort of various public and private actors is required in order to change the current legal status quo. This means that the change of the current status quo in strengthening anti-corruption policy may produce welfare, opportunity, and power costs for certain number of veto players. Given the fact that the Union-driven pressure depends on the willingness of ruling political elites as well as the other veto players to align with the EU requirements, it might be reasonable to assume that the domestic policy and legal status quo can be changed only if certain number of individual and collective actors – veto players agree with the proposed alteration. If high numbers of veto players oppose the adoption of new legal and policy areas, it is more likely to expect the national government not to comply with the EU rules and norms. Empirically speaking, the political interference of semi-authoritarian leader at all levels of governance and administration in Montenegro deeply influences prevalent phenomenon of political corruption, especially within the anti-corruption state institutions and judiciary. On the other hand, strong role of other veto players (post-transition profiteers, business corruption elites, financial tycoons, etc.), together with widespread clientelism, undermines capability of establishing independent law enforcement bodies in order to achieve the credible track record of investigation, prosecution, and final conviction of high-level corruption cases, consequently creating conditions for opposition to the EU demands in combating corruption. However, Montenegro’s alignment with the Union’s pressure does not depend only on the rule adoption costs, but on the limited statehood issues as well, i.e., weak democracy together with insufficiently developed democratic institutions and administrative infrastructure (Börzel 2011; Elbasani 2013; BiEPAG 2016; Cebelis 2016; Sedelmeier 2011).

Based on provided empirical data, it would be appropriate to argue that Montenegro did not ensure sustainability of reforms through the credible track record of implementation in the area of fight against the corruption during the pre-negotiation stage. Although the state demonstrated some progress in strengthening its legal system and institutional set-up in combating corruption, on the other hand, it is evident that the enlargement country outlined weak progress in tackling corruption. However, the country advanced in the accession process

198 by gaining the candidate status for the EU membership regardless of insufficiently satisfactory results in the fighting against corruption. Thus, the progress of the candidate country within the EU integration opens the question of the Union’s real range of interests and scope of conditions being imposed on enlargement state. It is more than clear that the Union imposed negatively reinforcing impact on empowerment of the anti-corruption policy by applying the strategy of permissiveness towards the candidate country. As a result, the target accession state conducted patchy and loose reform activities in combating corruption during the pre-negotiation stage by mostly maintaining the political corruption in the state anti-corruption institutions (DACI, CPCI, SEC, SAI), while at the same time refusing to deliver convincing results in prosecution and conviction of high-level ranking persons. However, the state’s avoidance to effectively implement the anti-corruption measures as requested by the EU level did not affect its further progress in the EU integration process. On the contrary, the EU strongly supported Montenegro on its integration path although the Commission continuously raised serious concerns over prevailing effects of wide-spread corruption at all levels of governance and administration.

Explaining trends of the state’s non-fulfilment of the anti-corruption policy requirements during the pre-negotiation phase

Following provided empirical observations in combating corruption in Montenegro during the pre-negotiation phase, the main question which arises here is how can we explain declining or downgrading trends in strengthening of the anti-corruption policy? More precisely, what are the main raisons for the state’s achievement of poor reform results in preventing corruption and providing convincing results in investigation, prosecution, and conviction of high-level corruption cases?

Four main explanations may be provided in this regard. First, strengthening of the anti- corruption policy in Montenegro during the pre-negotiation phase was primarily featured by an accelerated legislation growth followed by high number of the adopted anti-corruption strategic frameworks. Available information outlines that four different versions of the Action Plans of the strategy against the corruption and organized crime, along with one defined corruption strategy, were introduced during the pre-negotiation phase. Obviously, many adopted strategic documents in such a short period of time may have influenced the quality of enacted legislations due to constant changing of reform priorities within the corruption strategy. As a result, the accelerated adoption of the anti-corruption strategic documents had a profound

199 impact on rapid legislative growth consequently resulting in legislative ineffectiveness to produce legal changes in the fight against corruption. Obviously, the Union’s-driven rule of law pressure in inducing effective anti-corruption changes resulted with enactment of uneven, fast, and inadequate laws (more than 70) which were substantially limited in their scope of influence. Moreover, the accelerate legislative growth substantially affected insufficiently developed administrative apparatus unable to cope with vast legal changes, especially when it comes to anti-corruption policy alterations and its overall effects on independent functioning of the state anti-corruption institutions. Consequently, the system created both formal and ineffective legal regulations not in position to credibly strengthen the legal system in the fighting against corruption and ensure sustainable results in investigation, prosecution, and final conviction of corruption issues. Due to inefficient legal changes, the anti-corruption monitoring institutions became profoundly limited in its scope, and therefore not conducting pro-active approach in preventing corruption. The examples of the SAI and the Commission suggest that those supervisory institutions did not contain any real power in order to evaluate the assets declaration of political parties’ funding and public officials due to limitations of mechanism for checking accuracy of provided data. Therefore, it is possible to argue that those monitoring institutions in preventing corruption were merely artificial and formal institutions not independent in their scope of influence. Consequently, the existence of these rigid and dependent anti-corruption preventive bodies was profoundly characterized by overwhelming political influence whose existence was justified by formal fulfilment of the EU requirements as such.

Substantial lack of administrative and institutional capacities of anti-corruption bodies may be used as a second reason for the state’s downgrading trends in fighting corruption. Primarily, the state monitoring institutions for preventing corruption, such as the SAI and the Commission, were faced with profound issues of professional capacities. In particular, although the country strengthened its legal and institutional framework in tackling corruption issues, the implementation remained deficient due to the lack of staff and additional expertise in order to effectively evaluate the assets declaration of public officials and financing of political parties. Apparently, it was a visible lack of administrative capacities of the state monitoring institutions that substantially impacted impartiality and independence of the anti- corruption bodies to address corruption issues, chiefly political corruption and organized crime as existing at all levels of governance, administration, as well as prosecution and investigation of high-level corruption cases. Evidently, substantial lack of financial sources for strengthening

200 the administrative and institutional capacities of law enforcement bodies could be used as additional explanation for the then declining trends in curbing corruption. The law enforcement bodies and anti-corruption state institutions in combating corruption mainly relied on budget provisions and financial support of international donors during the pre-negotiation phase. Although some improvement of the state’s body administrative and institutional capacities in tackling corruption were seen in the increase of domestic budgetary funds and the Union financial support provided through the Instruments for Pre-Accession Assistance I (IPA I), it is evident that the overall strengthening of capacity of law enforcement bodies was extremely low. For instance, if one considers that the financial support of the EU though the IPA I funds was in total 173.1 million EUR for the whole Transition Assistance and Institution Building component (2007: 27.5 million EUR; 2008: 28.1 million EUR; 2009: 29.8 million EUR; 2010: 29.8 million EUR; 2011: 29.8 million EUR), the one can estimate that the financial support for the overall fight against corruption in Montenegro was extremely low during the pre- negotiation phase (Đurović 2012: 343). Therefore, based on the provided data it might be reasonable to assume that the total amount of the Union’s financial support for strengthening legal and institutional capacities of law enforcement bodies was not sufficient to effectively tackle corruption. As a result, significant lack of financial means deeply affected the development of capacity of investigate and prosecution bodies, especially when it comes to lack of appropriate skills, adequate equipment and human resources, in order to curb corruption and address high-level corruption cases. Evidently, the degree of cooperation between these law enforcement bodies (police and State Prosecutors’ Office) was very low, which significantly hampered effective repression of wide-spread corruption issues. Also, capacities of the law enforcement bodies in conducting financial investigation remained a matter of serious concern due to the lack of prospects to trace criminal assets and present evidence before appealing in court. Overall, based on the provided discussion it might be reasonable to conclude that both political and financial aspects had significant impact on limited results in the domain of development of anti-corruption capacities and overall sustainable results in combating corruption.

The lack of political will to substantially strengthen the legal and institutional framework in preventing and repressing corruption by securing sustainability of reforms through the convincing track record of implementation offers another explanation for declining trends in combating corruption. In particular, it is obvious that the state achieved substantially limited progress in fight against the corruption during the pre-negotiation phase due to

201 existence of political corruption within the domestic anti-corruption institutions. Evidently, political influence over supervisory agencies remained continuous and wide-spread, mostly because the SAI, the SEC and the Commission did not possess power to enforce independent oversight for those subjects having violated the anti-corruption preventive laws. Moreover, given the prevalent existence of political corruption in the supervisory bodies, the disciplinary proceeding measures were insufficiently used and enforced especially when it comes to independent assessment of financing of political parties and their electoral campaigns. In line with the proclaimed assertion, only few sanctions were imposed by the SAI and the SEC in the form of several misdemeanour offenses against political parties for non-compliance with the adopted law. Similar situation can be applied to the performance of the Commission. Reasons for suspicion of existence of political corruption lay in the issue of implementation and enforcement of the law on prevention of conflict of interest in performing public functions. Visibly, the supervising institution did not have the mechanisms to check assets declarations of public officials by accessing their banking information except those already officially provided to the Commission. Also, the lack of technical capacities in exchanging information between the Commission and other anti-corruption bodies remained problematic, namely the tax and custom administrations (that, by the way, could significantly improve domestic conditions for preventing corruption).

Therefore, based on the provided discussion it seems reasonable to assume that political influence on the state anti-corruption institutions was generated by the government intention to strongly obstruct achievement of concrete and sustainable results in strengthening anti-corruption measures, and, perhaps far more importantly, in relation to the track record of prosecution and conviction of high-level cases. A cluster between domestic ruling elites and corruption is a major issue in Montenegro, in a country where material benefits are being realized through corruption-based affairs. For such a small society as the Montenegrin is, the principle of acquaintance and gaining merit-based personal relationships represents a daily pattern of functioning that applies to all aspects of society, i.e., from employment in state institutions, public procurement, to various tenders, etc. However, protection of suspicious domestic and public actors involved in corruption affairs by the domestic political elites is the most common characteristic of wide-spread corruption. Significantly small number of prosecutions and final convictions of high-level corruption cases during the pre-negotiation phase represents a serious concern over the political elites’ deep involvement in corruption and possibly scandal affairs that could be utterly compromising for these actors. If we consider that

202 only 4 individuals were convicted for high-level corruption crimes and 1 individual was convicted by seizing and/or confiscating his assets, then it appears grounded to suppose that the ruling elites undermined further detection and investigation of corruption due to possible involvement by the government itself. Moreover, it might reasonable to claim the existence of strong links between the ruling elites and public actors in suspicious corruption cases, with this particular chain being unbreakable and all sides benefitting from mutual cooperation. On the other hand, hypothetically speaking, if this chain gets broken by establishing independent and impartial judiciary, one could expect convincing results in combating corruption of high-level cases.

Finally, it is an inconsistent and insufficiently credible Union approach in imposing the EU conditional policy that may be used as the last explanation for the given situation. Evidently, during the pre-negotiation stage the EU was faced with many internal and external political, economic, and financial challenges having substantially affected the lack of interest in the enlargement process towards the Western Balkan, of course including Montenegro. In particular, it is the EU enlargement fatigue and the Union’s insufficient interest for effective adoption of the acquis and alignment with the EU policy in the field of anti-corruption policy that had a substantial impact on overall declining trends in preventing corruption and achieving concrete and convincing results in prosecution and conviction of high-level corruption cases. On the other hand, the Union’s lack of interest within the enlargement policy was a clear signal to the domestic political elites not to effectively align with the Copenhagen political criteria by applying the same inconsistent approach of addressing anti-corruption demands initiated at the EU level. At the same time, given the domestic elite’s perception that preservation of internal political stability in the region remained the Union’s highest priority (and not fighting corruption), Montenegro relied on the EU’s permissiveness to continue in its progress in the given accession process.

5.2.2.2 The negotiation stage

In nutshell, two main empirical observations can be made on the fight against corruption in Montenegro during the negotiation stage. First, the Screening Report for Chapter 23 represents so far, as far as the EU is concerned, the most comprehensive analytical document investigating the current level of the state’s alignment with the EU rules and norms in

203 combating corruption. It provides not only recommendations over enhancing the legal and institutional framework over tackling corruption, but, perhaps far more importantly, it requires achievement of concrete and sustainable results in the field of the fight against corruption in Montenegro. In this regard, the Screening Report outlines the importance of meeting the requirements over prevention of corruption and establishment of convincing and credible track records in investigation, prosecution, and final conviction on all corruption levels, especially high-level corruption cases. Moreover, considering the continuous declining trends of the state in combating corruption, the Union has paid the most attention to both anti-corruption requirements, i.e., the strengthening of preventive and repressive anti-corruption actions. In particular, this covers the problem of strengthening the legal and institutional framework of conflict of interest and financing of political parties and election campaigns, credible-track record in prosecution and investigation of high-level corruption cases, as well as having a convincing number of cases with seizure or confiscation of assets, as these issues have remained a matter of serious concern in Montenegrin fight against corruption so far.

Second, the empirical findings outline that on the domestic level Montenegro has achieved overall limited progress in the fight against corruption during the negotiation phase. Evidently, although the state has shown some results in strengthening the legal system and institutional framework and administrative and institutional capacities in order to tackle the given problem, the empirical evidence indicates that overall moderate progress in fulfilling anti-corruption demands during the second integration stage has taken place so far. Originally, the accession negotiation period between the EU and Montenegro, respectively the time frame between the 2012 and 2017, is characterized by the state’s effort to enact new legislation, reinforce already adopted legislative measures and strengthen its anti-corruption institutional and administrative capacities. In this sense, concerning the Union’s requirements over strengthening the anti-corruptive preventive actions, the state primarily adopted the Law on Agency for Anti-Corruption (2014), thus foreseeing the establishment of the Agency for preventing corruption from 2016. Correspondingly, the Agency holds main competences of coordination, supervision, and monitoring of implementation of strategic documents for the fight against corruption, i.e., repression over corruption with the supporting Action Plan, as well as coordination of direct implementation and supervision over the laws on prevention of conflict of interests and financing of political parties. Furthermore, additional improvements have been particularly observable in providing trainings for employees in the Commission and Agency for Anti-Corruption Initiative (AACI) in terms of control competences and use of data

204 bases prescribed within the Law. In addition, in regards to enhancing repressive anti-corruption actions, particularly so in ensuring independent and effective specialised investigation and/or prosecution bodies, further improvements have been seen in strengthening Montenegrin legal system and development of administrative capacities through the adoption of the Law on Special Prosecutor’s Office (2015), thus establishing a separate Special Prosecutor’s Office for the fight against organized crime, corruption, terrorism and war crimes in order to process cases of corruption and organized crime, especially high-level corruption cases, and strengthen staff capacities of the Division for Suppression of Corruption, Organized Crime, Terrorism and War Crimes.

By the same token, the Montenegrin anti-corruptive system has demonstrated visible results in strengthening procedures for seizure, confiscation and management of processing crimes that need to be further regulated, along with the establishment of a financial investigation team governing the procedure of conducting financial investigations and the institute of confiscation of property by adopting the Law on Confiscation of Asset Benefits Acquired by Criminal Activities (2015). Additional activities have been oriented towards strengthening the institutional framework through the establishment of the Directorate of assets (2016) as an independent body in charge of management and custody of seized property. Furthermore, the state has demonstrated visible achievements in improving administrative (professional) capacities of the relevant State Agency based on the Law on Confiscation of Asset Benefits Acquired by Criminal Activities as well as capacities of the Public Property Administration through increase in number of jobs for civil servants for management and custody of temporarily seized or permanently confiscated property. Moreover, the JTC has continuously provided trainings for the employees in the special unit of the Police Administration for implementation of financial investigations, as well as to multidisciplinary team and prosecutors and judges in combating corruption.

However, although Montenegro has made some progress in strengthening its legal system and has established an institutional set-up in preventing and repressing corruption, the problem of corruption remains prevalent in many areas and continue to be a problem of serious concern in the negotiation stage. In particular, the country does not demonstrate sufficient dedication to reform activities in the fight against corruption, particularly so in prevention of corruption and proving the credible track-record in investigation, prosecution, and final

205 conviction of all corruption cases, especially high-level cases through effective implementation and enforcement of already adopted measures. In short, the implementation remains deficient.

In this sense, concerning the Union’s recommendation over strengthening preventive anti-corruption activities, particularly so in improving the system of assets declaration by strengthening supervisory competences and professional capacity of the Commission for prevention of the conflict of interest in order to ensure substantially affective check of assets, the new adopted law from 2014 has shown substantial shortfalls in terms of effective prevention of corruption. Visibly, based on 5 areas prescribed by the action plan in prevention of the conflict of interest, only 3 are covered by the respective law. Following already defined measures in preventing corruption, the newly enacted law does not ensure that the work of public officials in state-owned companies is being performed without remunerations, and, perhaps far more importantly, respective legal provisions do not contain more concrete or strict sanctions related to violation of the rules on conflict of interest, especially in cases when there is no reporting of assets and when there are incorrect data in asset declarations. Furthermore, although the system of reporting properties has been improved since March 2015, the performance of the Commission in checking data accuracy from reports of public officials contains visible shortcoming and loopholes. During the first half of 2015, the Commission has determined more than 600 violations of the respective Law. However, information on the exact number of conducted misdemeanour procedures towards public officials and outcomes of these procedures remain unknown.55 In addition, the Commission has also indicated insufficient progress towards development of institutional capacity, with reference to checking correct data in asset declaration of state officials by establishing automatic networking and access to data bases only to the Ministry of Interior and not to, as it was initially described within the Action Plan, Ministry of Maritime Affairs and Transport, Ministry of Finance, Commission for the Control of Public Procurement Procedure: respectively those bodies and institutions possessing data on property and income of public officials. Therefore, based on the empirical observations it seems reasonable to claim that there is strong influence of political corruption on the anti- corruption monitoring authority in terms of prevention of the conflict of interest due to problems of implementation and empowerment of legal provisions, as well as the existence of

55 Information regarding issues within (non)reporting of assets and/or incorrect data in asset declarations have not been provided by the Commission and therefore remained unknown for the second half of 2015 and 2016.

206 the lack of transparency of supervisory bodies in reporting properties in data accuracy and already conducted disciplinary procedures.

In addition, reasons for serious concern over political influence within the anti- corruption supervisory authority exist in insufficiently improved system of political party funding not ensuring reliable reporting, effective supervision, and sanctioning power by independent authorities following the GRECO recommendations. Evidently, the issue of further strengthening of Montenegrin legal system over prevention of corruption raises doubts over independence of the SAI and the SEC to impartially check and monitor mechanisms of political parties’ financing and possibly impose the sanctions if needed. Apparently, in line with the adopted law on financing of political parties and election campaigns, the monitoring anti-corruption bodies, namely the SAI and the SEC (responsible for the implementation of the law), have not adopted substantially important by-laws prescribed by the Action Plan, as these are needed to further regulate the use of public sources for activities of political parties during election campaigns and likewise determine the manner of keeping business books of political entities. In addition, the anti-corruption supervisory authorities face a profound problem of the lack of professional capacities. In this sense, the SAI has employed 70% of its capacities within the Sector controlling illicit financing of political parties, whereas the SEC has not fully completed this process yet. Therefore, following the empirical evidence it may be grounded to argue that the anti-corruption preventive bodies are being characterized by prevailing political corruption in controlling illegal financing of political parties due to the lack of professional capacities and legal provisions to prevent possible misuse of public sources for political parties’ purposes during election campaigns.

By the same token, the research findings also reveal that Montenegro has achieved insufficiently satisfactory results in strengthening its repressive anti-corruption measures during the negotiation phase. Primarily, the amendments to the CPC (2015) introduced novelties in terms of obstruction of legal system and avoiding perpetrators of criminal offenses, especially in terms of high-level cases serving appropriate sentences. In this sense, based on the adoption of the amendments to the CPC, it is possible to claim that the institute of plea- bargaining agreement even for the most serious criminal offenses, including criminal offenses of corruption, has been applied even more so in terms of high-level corruption cases. The amendments to the CPC do not foresee that the final sentence of parties accused of high-level corruption criminal offense cannot be lower than the legal minimum for other corruption

207 offenses, for instance, not high-level ones, as well, and that the final sentence for high-level corruption criminal offense can only exceptionally be decreased under the conditions prescribed within the CPC. Therefore, this legal loophole within the current amendments to the CPC has been substantially used by defendant convicted for high-level corruption and organized crime, consequently obtaining a minor penalty in this regard. For instance, in 2015 in the case of ‘Zavala,’ the High Court in Podgorica confirmed the previous sentence of 3-5 years of imprisonment to the former Mayor of Budva, his Deputy, and a former DPS MP, while in the case of ‘Košljun’ another individual who was also a former Mayor of Budva was convicted by the High Court in Podgorica to six years of imprisonment by using the same institute of plea-bargaining agreement (European Commission 2015b: 54). Moreover, in 2016 the Higher Court in Podgorica concluded a bargaining agreement with a former President of the State Union of Serbia and Montenegro and a high-ranking DPS party official Svetozar Marović by sentencing him to three years and nine months of imprisonment for high-level corruption offenses, with 1.1 million EUR of compensation and 100.000 EUR to be provided by him to charity (European Commission 2016b: 15). Last but not the least, with reference to misuse of public funds for political party purposes (the ‘Audio Recording’ affair), the Basic Court in Pljevlja in 2014 issued final conviction of 6 months of imprisonment against a director of Social Welfare Centre in Pljevlja and one of its employees (European Commission 2014b: 42-43).

Hence, based on the provided data, the empirical observation suggests that the EU has had substantially declining trends in strengthening the anti-corruption policy in Montenegro during the negotiation phase. In particular, the Union-driven rule of law pressure has had negatively reinforcing impact over enhancement of prevention of corruption and achieving the credible-track record in investigation, prosecution, and final conviction of all cases, including high-level ones. Thus, based on the provided empirical findings, it would be reasonable to claim that the Union has produced profoundly negative empowerment effects in combating corruption in Montenegro since 2012.

Noticeably, the state’s non-compliance with the EU-driven rule of law reform during the negotiation phase can be applied to already mentioned theoretical discussions within the Europeanization studies. In that regard, the external incentives model as the EU-driven process uses the EU conditionality and its strategy of reinforcement by reward in order to produce

208 domestic changes in the fight against corruption in Montenegro.56 Obviously, the EU conditionality has worked as an intergovernmental bargaining tool during the negotiation stage and has directly affected Montenegrin government. Consequently, the national government has used the calculus of the externally driven compliance by conditionality outweighing domestic adoption costs of aligning with the EU acquis, or perhaps that opportunity costs provided by other international actors may in the future produce less painful adjustment costs. As a result, based on the cost-benefit calculations, Montenegro has chosen not to fulfil the EU-driven anti- corruption demands because benefits of the received reward (advancement in the accession process, financial and technical assistance, advice, twinning, etc.) do not outweigh domestic adjustment costs. This particularly means that the Union’s current reward offer seems substantially small and insufficiently attractive for domestic political leaders in order to conduct overall reform of their anti-corruption system by demonstrating pro-active approach in combating corruption (Schimmelfennig and Sedelmeier 2005; Sedelmeier 2011; Börzel and Risse 2012).

Primarily, clear mechanisms of the Union’s externally driven initiatives to Europeanization have not worked appropriately so far in order to induce effective anti- corruption policy in Montenegro. Obviously, ineffectiveness of the EU conditional policy in inducing anti-corruption changes largely stems from the lack of the cost-benefit balance from both the EU and the domestic level that depends on certain sets of factors such as: the determinacy of conditions, the size and the speed of the EU rewards, the credibility of conditionality, the role of veto players, and finally the size of domestic adoption costs (Schimmelfennig and Sedelmeier 2005; Sedelmeier 2011).

Although the EU has clearly defined fight against the corruption as one of its key condition for membership (determinacy of conditions), it is, however, evident that the Union has failed to provide the credible membership perspective and a clear timetable for the given accession. Thus, Montenegrin advance in the accession process contains characteristics of a chiefly open-ended process. Consequently, the current enlargement fatigue among the EU member states has substantially undermined Montenegrin will to effectively address corruption requirements, especially those criteria related to further strengthening of the legal and institutional anti-corruption systems and establishing convincing and credible track record in

56 Prevention of corruption and achieving credible results in investigation, prosecution, and final convictions of high-level cases.

209 prosecution and final conviction of all high-level cases. Therefore, given that the corruption issue continues to be prevalent in many areas, it would be appropriate to claim that the comprehensive fight against corruption in Montenegro requires more attractive rewards in the form of providing credible membership perspective and setting up precise timetable for the accession, while at the same time relying less on technical and financial support or consulting services given by the EU itself. Furthermore, the credibility of the EU conditionality by imposing threats for the state’s non-compliance with the EU rules and norms has not worked accordingly. Evidently, during the negotiation phase the target state has not been faced with the effective EU conditionality based on the principle of carrot and stick through the introduction of either explicit (financial sanctions) or implicit sanctions (delay of the accession advancement award), as the state has failed to adequately address the anti-corruption requirements. Rather, the Union’s reluctance to impose threats has been perceived by the candidate country as a politically motivated gesture aimed to accelerate Montenegrin accession process by keeping at bay the influence of other great powers in the Western Balkans region, (Schimmelfennig and Sedelmeier 2005; Pridham 2005; Vachudova 2005; Grabbe 2006; Sedelmeier 2011; Noutcheva and Aydin-Düzgit 2012; Börzel and Risse 2012; Gateva 2015).

And finally, the size of the domestic adoption costs and their influence on other domestic actors substantially determine whether the state actually aligns with the EU conditions. This particularly means that the effective implementation and enforcement of legal and institutional changes in combating corruption may produce welfare costs and power losses for various public and private actors, for instance, veto players in Montenegro. Based on the theory of veto players, the more public and private actors oppose to effective addressing of given conditions, the less likely is to expect that the state fulfils the EU demands. Generally, the number of veto players is considered to be still quite high in Montenegro. They represent a net formed by the domestic political elites and characterized by political interference of semi- authoritarian leader in corruption affairs, which essentially means various veto players are connected in clientelist webs with the political elites and they have deep influence on widespread corruption on all levels of governance and administration. As a result, the state has consequently demonstrated declining trends in improving preventive and repressive anti- corruption actions because of maintaining status quo in legal and policy changes. On the other hand, the state’s fulfilment of anti-corruption conditions does not solely depend of the size of the domestic adoption costs, but also on the stateness issue: overall weak democracy with insufficiently developed democratic institutions and administrative capacities (Börzel 2011;

210

Elbasani 2013; BiEPAG 2016; Cebelis 2016; Schimmelfennig and Sedelmeier 2005; Sedelmeier 2011).

Therefore, based on the research findings it would be grounded to claim that Montenegro has witnessed a substantial backsliding in decisive fight against corruption following the line of the EU integration dynamics. More precisely, the candidate country has shown profoundly limited progress in combating corruption during the negotiation phase. As it has been previously elaborated, the state has made some progress in strengthening its legal and institutional framework, as well as built up its institutional and administrative capacities in order to tackle corruption issues. However, the implementation remains deficient. Given the fact that Montenegro currently faces the most demanding integration phase challenges, it would be reasonable to expect that the state demonstrates a more pro-active approach in addressing corruption issues through implementation, especially when it comes to preventing corruption and the credible track record in final conviction of high-level corruption cases.

Thus, the problem remains the effective implementation and enforcement of anti- corruption measures primarily due to evident conflict of interest of public officials working in state companies with remunerations, but perhaps far more importantly, because of political corruption and lack of independence and transparency within respective supervisory bodies in reporting properties related to data accuracy from reports of public officials and limited power to impose disciplinary procedures for non-alignment with the appropriate laws. In addition, the same problems are seen in financing of political parties. Apparently, misuse of public financial sources for political party purposes by political subjects during election campaigns and insufficiently developed professional capacity of the anti-corruption supervisory authorities to control political party funding raises serious concerns over wide-spread political corruption on all governance and administration level. Finally, extremely low number of final convictions over high-level corruption cases during the negotiation phase are also alarming. Evidently, misuse of the new amendments to the CPC opens space for raising legitimate questions of the real range of newly adopted legislation in terms of effective fight against high-level corruption, mostly due to new legal provisions on the plea-bargaining agreement, thus allowing defendant convicted of high-level corruption to consequently get less severe penalties.

211

Explaining trends of the state’s non-fulfilment of the anti-corruption policy requirements during the negotiation phase

Considering already revealed empirical evidence in the fight against corruption in Montenegro during the negotiation stage, the main question which arises is how can we explain continuously downgrading trends in strengthening of the anti-corruption policy? In particular, what are the main reasons for the state’s limited achievement in combating corruption, particularly so over preventing corruption and achieving convincing and credible results in investigation, prosecution, and conviction of all levels of corruption cases, especially high- level cases.

Four major explanations can be enlisted. First, substantive increase of law adoption and by-laws in strengthening prevention and repressive actions in combating corruption has substantially undermined the process of effective implementation and enforcement of the enacted legislation during the period of accession negotiations. Obviously, rapid development of the legal system in the fight against corruption, particularly so in improvements of the system of asset declarations, strengthening competences and professional capacities of supervisory bodies, enhancement of the system of financing of political parties by ensuring reliable reporting, effective supervision and sanctioning system, together with establishing independent, specialized investigation/prosecution and financial investigation bodies, needs a longer period of implementation and empowerment. In a country in which the corruption remains prevalent in many private and public areas, rapid legislation growth substantially influences insufficiently skilled and ill-equipped administrative and institutional capacities, and therefore undermines the entire anti-corruption system in order to adopt the acquis and align with the EU policies, consequently resulting in ineffectiveness of the adopted legislation and already established institutional-set up to tackle corruption issues. As a result, current anti- corruption system in Montenegro possesses both formal and non-functional legislative framework without the ability to ensure sustainability of reforms through the credible track record of implementation. Visibly, it is the EU-driven rule of law demands that have had a substantial impact on rapid and artificial domestic legislative growth reflected in inability to induce functional legal and institutional anti-corruption changes. In addition, effects of the accelerate legislative growth have had also a profound impact on the effective establishment of institutional anti-corruption framework. Obviously, the EU-driven pressure for rapid strengthening of the legal framework within the anti-corruption policy has influenced creating insufficiently efficient supervisory bodies lacking independent investigative/prosecution tools

212 and supervisory mechanisms to effectively address high-level criminal corruption cases and wide-spread political corruption. Instead, the anti-corruption prevention/investigation and supervisory bodies contain more characteristics of formally established bodies being strongly dependent in their scope, with their investigative and monitoring mechanisms profoundly limited. As a result, those rigid and superficially established anti-corruption institutions are deficient in providing sustainable results in tackling corruption issues.

Substantial lack of institutional and administrative capacities of monitoring bodies and the law enforcement authorities is another explanation for the state’s limited progress in combating corruption. Primarily, the supervisory anti-corruption institutions, such as the Commission for prevention of the conflict of interest, suffers from a profound problem of professional capacity in order to ensure effective and substantial checks of asset declarations provided from reports of public officials. Main obstacles may be seen in insufficient employment of staff for efficient oversight of respective data accuracy in this regard. Also, the problem of professional capacities has largely mitigated functional reinforcement of the conflict of interest due to the lack of staff expertise to evaluate given asset declarations. Consequently, visible flaws in further development of institutional capacities substantially effects creation of deficient supervisory competences, consequently resulting in insufficient check of declarations of assets and the data provided in this regard. Furthermore, the problem of strengthening the administrative capacity of the SAI and the SEC has remained an issue substantially undermining effective prevention of corruption. Obviously, the lack of administrative capacities in controlling the financing of political parties especially during election campaigns in larger extent calls into question reliable reporting and effective supervision and sanctioning by independent monitoring bodies for law violations, and therefore, opening the space for disputing the real scope of their performance.

By the same token, the lack of developed administrative and institutional capacities significantly hampers investigations and prosecution by law enforcement bodies in addressing all corruption issues. The lack in strengthening law enforcement capacities is primarily the product of insufficient financial resources provided by the state bodies. Special investigation teams for combating corruption, along with police units and the Special Prosecutors’ Office, have shown considerably low progress in tackling corruption issue due to the lack of expertise, trainings, and personnel as caused by limited financial sources. Evidently, strengthening of independent and effective (financial) investigation teams and prosecution bodies has largely

213 depended on support of the international donors, given the fact that current budgetary means do not respond to needs of building specialized law enforcement bodies. However, given the fact that the financial support of the Union as major contributor in this case has been extremely low and unsatisfactory, one is in position to claim that substantially small and limited funds allocated to improving the anti-corruption capacity has been one of the main reasons for stagnation in the process of the fight against corruption. Apparently, the financial support of the EU provided through the Instruments for Pre-Accession Assistance II (IPA II) through the component of ‘Rule of Law and Fundamental Rights’ totalled 36.1 million EUR for the period of 2014-2017. Furthermore, insufficient allocation of financial needs in strengthening anti- corruption capacity measures has had profound effects on improving the financial investigation team in order to address high-level corruption issues. As a result, the process of coordination and cooperation between law enforcement bodies in conducting financial investigations has been poor and ineffective due to the lack of possibility to trace criminal assets and present the evidence before appealing in court. Also, cooperation with police and the State Prosecutors’ Office in investigating and prosecuting high-level corruption cases is poor mostly because of the insufficiently developed exchange of information between law enforcement bodies substantially hampering the credible track record in combating corruption.

Strong opposition of the ruling elites to strengthen preventive anti-corruption actions as well as to provide the credible track record in investigation, prosecution, and final conviction of high-level cases is the third explanation for declining trends in the fight against corruption. The third explanation assumes that strong lack of political will of the domestic political elites to address wide-spread corruption issues during the negotiation stage is primarily the result of its active involvement in corruption affairs and scandals. Evidently, this integration period has also been characterized by prevalent corruption in all levels of government and administration, as well as by rather strong infiltration in many public and private spheres. Primarily, the problem of political corruption has remained a profound problem during the negotiation phase, and it is featured by strong political influence on strengthening anti-corruption legal and institutional framework. It has not been a rare occurrence to see political corruption in Montenegro in terms of the use of the state or public sources for financing ruling political party and its election campaign. A serious allegation of the misuse of the state financial sources for internal political party purposes during parliamentary elections in 2012 and presidential elections in 2013 did not gain a legal epilogue in prosecution and conviction of those responsible even though evidence was presented to the appropriate authorities. Obviously,

214 corruption in this small Adriatic state is strongly linked and influenced by politicization of its judiciary, respectively by having political influence on judicial independence and accountability ensuring all potential corruption affairs involving government officials to remain unaddressed. The ‘Audio Recording’ affair from 2013 may be used as a suitable example in order to support the given claim. Apparently, the ‘Audio Recording’ affair is related to the release of audio recordings of session of the ruling Democratic Party of Socialists (DPS), whereby talks on the use of the state resources for party purposes or employment by party affiliation during the last elections were recorded. Evidently, reasons for serious concern on the violation of law on financing of political parties by the ruling political party mostly exists due to ruthless pressure on undecided voters or employees in the state institutions to vote for the said party in order for it to remain in power. Furthermore, there is a reasonable doubt that the DPS has purchased ID cards from the citizens, especially from those who are facing with poor financial status, thus ensuring survival of the ruling elite. Therefore, it is not a rare case that both legislative and executive branches formally adopt legislation or by-laws related to insuring transparency of financing of political parties and election campaign, but in practice implementation and enforcement does not actually exist. Hence, one can mention as yet another example of newly adopted legislative provisions (by-laws) by the SAI still not addressing the use of the public sources for activities of political subjects and election campaigns regardless of serious issues in this regard.

In addition, the law on financing of political parties contains substantial flaws and loopholes regarding political party funding. The current law foresees individuals contributing to financing of political parties and election campaign from private sources with a maximum of 2.000, -EUR per year. The problem arises due insufficient control of the Agency for preventing corruption, as it does not possess capability to check financial donations or contributions to political parties due to strong political interference influencing performance of the anti-corruption bodies. Obviously, politicization of the Agency to control party donations from private sources unequivocally opens a large space for money laundering, consequently jeopardizing public interest in suppressing corruption, especially when it comes to, for instance, elections. The case of the ruling party DPS and its list of donors in the previous parliamentary elections has caused controversy in public due allegations of money laundering. Apparently, the DPS has provided the list of two thousand donors having paid 654.000, -EUR for supporting DPS election campaigns, with some of the persons stated in the report having publicly denied the donation and saying that their names and data have been misused (Vijesti 2011).

215

Wide-spread political corruption in all pubic institutional spheres in also recognized in the case of achieving a credible track record of investigation, prosecution, and conviction of all high-level cases. Visibly, concerning the Union-driven rule of law pressure on the state to impose convincing and sustainable results in repressing corruption, the ruling elites in Montenegro in order to satisfy the Union have resorted to the logic or principle of the weakest link. Hence, the DPS as the most dominant and highly corrupt political party has had to ‘sacrifice’ one of the ‘weakest’ high-profile individual(s) in order to formally meet the EU requirements during the negotiation phase. As a gesture of gratitude, the governing power has also adopting legal provisions enabling those highly-profile individual(s) to be only lightly sentenced. The case of the former vice-president of DPS and president of the former State Union of Serbia and Montenegro, Svetozar Marović, confirms this claim. Apparently, before the start of the process of investigation, prosecution, and final conviction of Marović for his involvement in a corruption criminal affair of damaging both the local and state budget for several million euros, the Parliament (incidentally?) adopted the amendments to the CPC, thus essentially helping the defendant. This new legal provision introduced the institute of plea- bargaining agreement for most corruption offenses, including, of course, high-level corruption as well. Consequently, the amendments to the CPC allow for an exceptional decrease of sentence in high-level corruption cases under the conditions prescribed within the CPC, with the given sentence not being below the legal minimum valid in all other (non high-profile, that is) cases as well. Thus, this legal loophole was used by Svetozar Marović to get a minor penalty, and he was sentenced to total of three years and nine months for corruption. Even today, use of the institute of plea-bargaining agreement opens various questions related to range and scope of law-enforcement investigation and prosecution capacities, as well as probes the lack of transparency in conducted procedures due to the fact that Montenegrin public still does not have access to precise information on these and similar matters.

Finally, visible lack of interest of the Union towards the EU enlargement process represents the fourth explanation in regards to corruption. Obviously, profound internal and external issues of the EU, respectively strong influence of economic and financial crisis, institutional reform issues, visible disagreements among the member states regarding the future development of the Union, rise of populism, right-wing political parties and semi-authoritarian leaders, and finally the enlargement fatigue, have had a profound impact on the lack of consensus within the EU institutions about the future of the enlargement policy. Although the EU has provided the region with the membership perspective, Brussels has been, on the other

216 hand, reluctant to confirm the date for future accession of the Western Balkan countries. Overall, it might be reasonable to claim that a lack of interest of the Union in terms of its integration process towards Montenegro has been characterized by clarification and specification of both range and scope of conditions observed in three points: characterization of the political criteria with a special focus on the rule of law, introduction of the opening and interim benchmarks, and transformation of the accession process into and ‘open-ended process’ (Gateva 2015). Thus, one is able to claim that the EU conditional policy has had a substantial impact on the lack of political transformation in Montenegro due to insufficient and inefficient EU policy in imposing effective fight again corruption during the negotiation stage. In particular, negatively reinforcing impact of the EU substantially has affected conditions over tackling corruption, especially when it comes to achieving concrete and convincing results over prevention of corruption and establishing a credible track record in investigation, prosecution, and final conviction of high-level cases. Hence, it would be grounded to argue that insufficient results in combating corruption have primarily stemmed from the Union’s reluctance to effectively impose the anti-corruption measures to the domestic ruling elites holding accountability for overall strengthening the state’ anti-corruption policy. On the one hand, it is the reluctance of the EU to induce stronger anti-corruption tackling pressure that has consequently affected the rise of negatively reinforcing impact on the prevention of corruption and caused problems in providing a credible track record in prosecution and investigation of high-level cases. Last of all, the given approach has thus resulted in a very limited progress in the fight against corruption in Montenegro.

5.2.3 Conclusion

Based on the given explanations, this chapter has sought to provide answers on the question of Montenegrin failure to Europeanize despite the long-lasting reform process. In particular, the issues of external or internal conditions/factors influencing visible decline within the fight against corruption and respective downgrading trends have been assessed.

In that regard, since 2007 when the country started combating corruption, the Union has been confronted with profoundly unfavourable domestic conditions, respectively the limited statehood issue. As it was the case with many post-communist transition societies, Montenegro has been faced with the problem of having a weak democratic and strongly

217 dependent institutions, institutionally-entrenched corruption and clientelism, and insufficiently developed administrative structure not able to effectively tackle corruption issues. In particular, the problems of limited stateness have had profound impact on wide-spread political corruption within the anti-corruption supervisory institutions created to mitigate political influence in relation to the conflict of interest of public officials and ensuring reliable transparent monitoring mechanisms to assess political party funding and election campaign. Furthermore, due to the lack of expertise, funds, and staff, insufficiently developed administrative and institutional capacities of the law enforcement bodies, there has been a failure to effectively address corruption issues, particularly so in achieving concrete and sustainable results in investigation, prosecution, and final conviction of all corruption cases, especially high-level ones.

Second, remnants of the post-communist legacy still play substantially active role in the fight against corruption during the whole EU integration phase. More precisely, strong impact of the veto players in combating corruption might account for downgrading trends in enhancement of prevention of corruption and achieving convincing and sustainable results in prosecution and final conviction of high-level corruption cases. The veto players (post- transition profiteers, business corruption elites, financial tycoons, etc.) originating from the post-communist period by means of financial support of the governing party have deeply infiltrated all levels of governance and administration. Close criminal network cooperation between the corruptive political elite and the veto players primarily ensures political protection of these players from possible investigation, prosecution, and final conviction through the strong political influence over judiciary, especially over independence and impartiality of judges and prosecutors. Therefore, it might be grounded to claim that corruption in Montenegrin judiciary primarily secures the status of both corruptive political elites and veto players as legally untouchable for their corruptive actions and manoeuvres. By providing financial support and donations for the ruling party election campaigns, these organized criminal clans realize their private interests through corruptive executive power that remains a suitable tool for increase of their illegal wealth. As it has been already stated before, it is this narrow circle of post-transitional winners that are criminally closely related to the ruling party, which consequently benefits from corruption affairs in privatization, urbanization, public tenders and public procurements. Also, due to the strong inter-dependence between domestic ruling elites and veto-players, this corruptive and criminal clan alliance substantially secures potential prosecution and conviction of high-level corruption offenses. Therefore, it would be

218 reasonable to claim that long-lasting criminal ties will continue to exist until the Union-driven rule of pressure imposes positively reinforcing effects in achieving credible and convincing track-record in monitoring, prosecution and trials of corruption. Since this hypothetical construction is not particularly applicable to the current state of affairs in corruption, one might argue the fact that the veto players still have a strong impact in undermining the process of effective fight against corruption during the negotiation stage. However, if we assume the situation in which the country is pressured to provide credible track-record in final conviction of high-level cases, it is reasonable to expect that the veto-players, along with the corruptive political elites, will strongly oppose achieving any concrete and sustainable results in this field mostly because of their active involvement in various corruption affairs.

On the other hand, existence of facilitating factors, namely civil society organizations (CSOs), primarily NGOs and academia representatives, still does not have any convincing influence in providing assistance in the fight against corruption, particularly so over providing recommendations and/or monitoring activities towards strengthening preventive and repressive anti-corruption activities. Thus, these domestic reformers, largely linked with the Union and its accession perspective, have been trying to play an active role in the fight against corruption mostly through the National Commission for implementation of the Strategy for the fight against corruption and organized crime and the Working Group for Preparation on Negotiations on the Accession of Montenegro to the European Union in the area of the acquis related to the negotiation chapter 23 Judiciary and Fundamental Rights etc., without, however, any convincing results. Evidently, NGOs have been prevented by the state to keep an active role of watch-dogs in the country during the accession process. In particular, although they provide substantial efforts in monitoring the process of combating corruption, CSOs do not have any particular influence related to decision-making process, consequently playing rather marginal role towards government performance. Based on this assumption, the reasons of CSOs’ omission from strengthening the given anti-corruption reform activities can be observed in disclosure of corruption affairs within the ruling elites, which might mitigate further progress of the state in the process of accession negotiations.

Due to unfavourable domestic conditions, the political elites have taken profoundly limited activities in enhancing the prevention and suppression of corruption issues, at the same time conducting the state capture measures over the state anti-corruption institutions. Following the current state integration dynamics in combating corruption, it is evident that

219 corruption remains a prevalent problem and continues to be a matter of serious concern even after 5 years since the period when Montenegro opened the accession negotiations with the EU by opening the Chapter 23 and focusing on the rule of law requirements. These profound problems are particularly seen in strong political influence on anti-corruption institutional set, as well as in issues with the law-enforcement bodies being continuously stopped in effectively tackling wide-spread corruption issues. In particular, direct consequence of existence of political corruption is observable in insufficiently independent functioning of the supervisory bodies, namely the SAI, the SEC and the Commission, which are unable to effectively monitor and supervise illicit enrichment of financing of political parties and election campaigns and reporting the conflict of interest of public officials due to incorrect data in asset declarations. The lack of professional capacities combined with politicization of these institutions has produced a rigid, formal, and artificial institutions not demonstrating proactive approach in order to prevent corruption and ensure adequate sanctioning measures. Moreover, imposing sanctions towards the entities having violated the law is minimal although there are serious concerns over non-compliance in this regard. Furthermore, reasons for serious concerns over strong political corruption are grounded in numerous accusations by opposition political parties and non-governmental organizations over misuse of state/public resources for political party purposes by the ruling party. It might be reasonable to assume that the monitoring and supervisory anti-corruption institutions, as well as prosecution and police, show visible elements of the state capture mostly because many of these accusations do not get a legal epilogue in any particular way. Therefore, one is in position to talk about political capture of anti-corruption authorities not using legally provided sanctioning measures in order to prevent party corruption. Finally, substantial lack of a credible track record in investigation, prosecution, and conviction of high-level cases during the whole integration phase provides a clear picture of the overall corruption status in Montenegro. So far, between 5 and 10 individuals have been legally convicted in high-level corruption cases, although the Union- driven rule of law pressure on this demand has been in existence for more than 10 years. If one takes into account that many convicted persons use the established institute of plea-bargaining agreement to significantly reduce first instance verdicts, then one may claim that the state has not achieved concrete and sustainable results towards the Union demands over establishing convincing and credible track record in prosecution and conviction of high-level corruption cases.

220

Thus, political corruption remains wide-spread at all levels of government and administration and continues to be a profound problem in terms of future EU membership. Obviously, the main reason for rooted corruption in many areas lies in rather strong unwillingness of the political-ruling elites to effectively tackle corruption by releasing the anti- corruption authorities from state capture and political influence. However, current perception of the long-lasting political regime accused of numerous corruption affairs and scandals in the 30-year rule of Montenegro does not sound so convincing when government officials claim that combating corruption shall be successfully finished regardless of the cost. However, current trends in providing convincing and credible results in the fight against corruption have proven exactly the opposite. Apparently, it is masking (fabricating) of formal and institutional changes together with the EU’s reluctance to induce anti-corruption measures that has allowed the political elites to remain in power and undermine addressing corruption issues. As a result, overall legal and political anti-corruption changes are unequivocally stagnating in the country, demonstrating at the same insufficient commitment in providing clear and sustainable results in the fight against corruption.

Last but not the least, reluctance of the Union-driven rule of law pressure to impose anti-corruption demands is the final explanation why Montenegro has failed to Europeanize despite the long-lasting reform process. Evidently, during the process of strengthening the anti- corruption policy in Montenegro, the Union has mostly focused on processes themselves rather than on achieving real progress results. Rather than being an effective driver of the anti- corruption system, the EU conditional policy has largely been playing the role of a monitoring actor constantly repeating same recommendations not addressed by the candidate country, but on the other hand, without introducing additional measures on how to prevent them the given problems. Therefore, one can talk about the Union’s lack of interest for advancing the EU enlargement policy further towards effective promotion of the anti-corruption requirements. In addition, due to the Union’s reluctance to advance the enlargement process on the one hand, and maintain internal political stability on the other, the EU has consequently supported domestic political leaders in fighting corruption by means of active cooperation with those agents. Noticeably, the Union has tried to play a constructive role in strengthening the anti- corruption system by building ties with the post-communist autocratic leaders who strongly interfere into the anti-corruption institutions by using non-democratic means, i.e., with those domestic agents suspected of being involved into corruptive and organized crime affairs. Thus, the EU has not only supported domestic leaders in failing to meet the anti-corruption criteria,

221 but it has also strengthened their political position by providing them with financial funds through various means of Instruments for Pre-Accession Assistance. In return, domestic political leaders have developed a sense of irreplaceability with international circles in terms of tackling those anti-corruption dimensions that do not question their survival in power.

Hence, in line with the Union’s inconsistent and insufficiently conditional policy approach, it might be appropriate to also mention the country’s current trends in the EU integration process. In particular, this research has highlighted certain features inherent to combating corruption in Montenegro during the accession phase. Primarily, although Montenegro has advanced in the accession process, the country has also continuously met same problems mainly related to the issue of strengthening prevention of anti-corruption measures, ensuring independence of the country’s supervisory authorities, and achieving a credible track record in investigation, prosecution and conviction of high-level corruption cases.

In addition, and being perhaps a far more important trend, although the Union has indicated visible inconsistencies regarding continuous external pressure, Montenegro has nevertheless managed to continuously advance in the EU accession process although at the same time demonstrating reluctance to effectively address prevention of corruption measures and establish convincing and credible results in prosecution and final conviction of high-level corruption cases. As a result, the political corruption has remained widespread and continues to be a matter of serious concern. Evidently, the EU-driven rule of law promotion has applied the strategy of permissiveness in strengthening the anti-corruption policy, while at the same time allowing the candidate country to advance in the EU integration process although it does not provide sufficient results in combating corruption. Therefore, there has been a tendency in the state demonstrating limited progress in preventing corruption and providing concrete and sustainable results in fighting high-level corruption, paradoxically resulting in the advance in the accession process.

Based on the provided discussion, this chapter has argued that the fight against corruption in Montenegro during the accession process has depended on three inter-dependent factors, namely the EU conditional policy, the domestic factors, and efficiency of conducted reform activities. Given the outcomes in combating corruption in the fight against corruption during the pre-negotiation and negotiation phase, the candidate country has achieved profoundly limited progress in the fight against corruption by introducing negatively reinforcing effects on prevention of corruption and achieving a credible track record in

222 investigation, prosecution, and final conviction of high-level corruption cases. In particular, the Union’s reluctance to effectively impose combating corruption measures over preventive and repressive anti-corruption actions, and strong lack of the political will to tackle profound corruption issues have consequently resulted in a weak reform progress due to political elites’ selective approach aimed at fulfilling those anti-corruption dimensions not questioning the existence of political corruption within the anti-corruption supervisory authorities or judiciary. As a result, the EU lack of interest in improving the given anti-corruption framework has contributed not only to support of the survival of semi-authoritarian elites by financial needs, but, far more seriously, it has assisted the state capture by the corruptive ruling party having clear ties with organized crime structures.

In order to further strengthen the process of Europeanization of Montenegro, there are number of changes which need to be introduced. Primarily, the EU needs to introduce a credible membership perspective to the whole Western Balkan region, thus cancelling the open-ended process of the enlargement strategy. This particularly means that the Union must provide a true commitment towards the Western Balkans by introducing a timetable for the accession of these countries into the EU. Moreover, further EU efforts are particularly needed in actively controlling effective fulfilment of the anti-corruption demands by imposing explicit and implicit threats (financial and penalizing sanctions) towards the enlargement country, rather than simply having monitoring activities in place. Additionally, certain changes need to be introduced at the domestic level as well. First, the state’s anti-corruption supervisory bodies and law enforcement authorities need to be released from the state capture in order to achieve concrete and sustainable results in preventing political corruption and establishing a credible track record in investigation, prosecution, and final conviction of high-level corruption cases. Second, further efforts are needed in strengthening legal aspects and policy choices. In particular, the Parliament and the Government need to provide additional actions in reducing political corruption by adopting effective legislation aiming to: 1) improve the system of assets declaration by strengthening supervisory competences and professional capacity of the Commission for prevention of the conflict of interest by introducing legal provisions ensuring public officials’ work in state-owned companies is being performed without remunerations, and more concrete or strict sanctions related to violation of the rules on the conflict of interest are introduced, especially in the cases of not reporting assets and providing incorrect data in asset declarations; 2) improve the system of political party funding, which consequently ensures reliable reporting, effective supervision, and sanctioning power by independent

223 authorities according to the GRECO recommendations, by adopting legal provisions regulating the use of public sources for activities of political parties and election campaigns, as well as having the measure determining manners of keeping business books of political entities; 3) strengthen the amendments to the CPC, particularly so over the use of the institution of the plea-bargaining agreement by reducing the obstruction of the legal system so as to avoid situations in which perpetrators serve inappropriately low sentences. Third, decision-making process needs to be substantially changed by active inclusion of civil society organization (NGOs, academia representatives, etc.) in creating policies and strategies, recommending amendments to the anti-corruption legislation, and monitoring reform processes. And finally, substantial lack of institutional and administrative capacities of the anti-corruption institutions, with non-independent authorities and law enforcement bodies remaining a profound related to corruption issues. Therefore, the executive branch needs to demonstrate further efforts in strengthening its anti-corruption capacities by providing additional financial sources in order to improve staff, equipment, and continuous trainings in order to successfully finish the EU integration process.

In line with the given empirical elaborations, the question that is being raised is whether interdependency of both external and internal factors is sufficient for obtaining complete insights into why the Union has not succeeded in Europeanizing Montenegro in the field of fight against the corruption? This particular issue shall be addressed in the conclusion of this thesis.

224

Appendix 2: Anti-corruption policy in Montenegro Normative and empirical analysis of EU – Montenegro documents for a period 2006-2017

Top-down approach Bottom-up approach

Year Body/ Recommendation(s) Deadline Final Measure(s)/Activity Government`s Researcher`s Document realization evaluation57 evaluation58 8.11. 2006 MNE 1.1-Strengthen the legal and 2006 28.6.2005 1.1.1-Program against the Realized Realized 2006 Progress institutional framework in Corruption and Organized Crime; Report achieving visible results in preventing and prosecuting 24.8.2006 1.1.2-Action Plan for 2006-2007 corruption; implementation of the Program EU against the Corruption and enlargement Organized Crime; strategy - 15.2. 2007 1.1.3-Commission for monitoring European of implementation of Action Plan Commission for implementation of the Program against the Corruption and Organized Crime;

1.2.-Amend Law on Conflict of 2006 1.2.1-Measure has not been Unrealized Unrealized Interest; achieved;

1.3-Effective implementation 2007 1.3.1-Measure has not been Unrealized Unrealized of the Law on Political Parties; achieved;

1.4-Development of state Continuously 1.4.1-Measure has not been Continuously Partly Realized capacities; achieved;

57 In accordance with defined methodological framework, based on the normative analysis the evaluation of the state bodies` work is divided in 3 categories: realized, partly- realized and unrealized measures and/or activities. 58 In accordance with defined methodological framework, based on the empirical analysis the evaluation of the state bodies` work is divided in 3 categories: realized, partly- realized and unrealized measures and/or activities.

225

1.5-Providing credible track- Continuously 1.5.1-Measure has not been Continuously Unrealized record of investigation, achieved; prosecution, and final conviction of high-level corruption; 17.1. Council of the European Partnership 17.5.2007 Action Plan for Implementation Realized Partly Realized 2007 EU of the European Partnership; Short-term 1.1-Amend and 2007-2009 27.12. 2008 1.1.1-Law on Conflict of Interests Realized Partly Realized priorities fully implement of Public Servants; current law on conflict of interest;

1.2- 2007-2009 18.7.2008 1.2.1-Law on Financing of Realized Partly Realized Strengthening Political Parties; and implementing the Law on Political Parties; 2.1-Setting up 2007-2009 Continuously 2.1.1-Inter-institutional Unrealized Unrealized efficient cooperation between the judiciary institutional and the Customs Directorate and mechanisms for Tax Administration; inter-agency cooperation and Continuously 2.1.2-Strengthening of DACI; Partly Realized Partly Realized enhancing the operational capacity of law 2007-2009 28.6.2005 2.2.1-Program against the Realized Realized enforcement; Corruption and Organized Crime;

2.2- 24.8.2006 2.2.2-Action Plan for Realized Realized Implementation implementation of the Program of the anti- against the Corruption and corruption Organized Crime; strategy through ensuring 15.2. 2007 2.2.3-Commission for monitoring Realized Realized financial and of implementation of Action Plan human for implementation of the Program

226

resources to law against the Corruption and enforcement Organized Crime; bodies; 15.6.2007 1.2.4-Law on salaries and other Realized Partly Realized income of holders of judicial office and the rules and procedure of the state prosecutor`s office;

Medium- term 1.1-Prevention 2009-2012 2009-2012 1.1.1-Strengthening the capacities Unrealized Unrealized priorities of and fight of SEC; against the corruption at all 1.1.2-Strengthening the capacities Partly Realized Partly Realized level; of CPCI;

1.1.3-Strengthening of technical Partly Realized Partly Realized and material capacities of judicial holders;

1.1.4-Strengthening Realized Realized administrative, technical and material capacities of bodies which deals with prevention of corruption;

1.1.5-Creation of condition and Partly Realized Unrealized capacities for performance of SIM; 1.2-Full 2009-2012 19.1.2006 1.2.1-UN Convention against Realized Realized alignment with corruption; the UN Convention on 2009-2012 6.6.2006 1.2.2-Criminal-law Conventions Realized Realized the fight against of the Council of Europe on corruption and Corruption; other relevant 22.6.2011 -Amendments to the Criminal Realized Realized Council of Code;

227

Europe 26.8.2010 -Amendments to Criminal Realized Realized Conventions; Procedure Code;

26.7.2011 -Amendments to the Law on Realized Partly Realized Prevention of Conflict of Interest;

29.7.2011 -Law on Public Procurement; Realized Partly Realized

9.8.2012 -Law on Free Access to Realized Partly Realized Information; 2.1-Provide 2009-2012 2009-2012 2.1.1-Strengthening the capacities Partly Realized Partly Realized convincing in detection and conduction of results through financial investigations; establishment `effective procedures for the detection, treatment and follow-up of cases of – suspected fraud including EU funds;

6.11. 2007 MNE 1.1-Full implementation of the 1.1.1-Program against the Realized Partly Realized 2007 Progress action plan; Corruption and Organized Crime; Report 1.2.2-Action Plan for Realized Partly Realized 2007-2008 EU implementation of the Program Enlargement against the Corruption and Strategy Organized Crime; - European 1.2.3-Commission for monitoring Realized Partly Realized Commission of implementation of Action Plan for implementation of the Program against the Corruption and Organized Crime;

228

1.2-Amend the Law on 2006 1.2.1-Measure has not been Unrealized Conflict of Interest; achieved;

1.3-Lack transparency of 2007 18.7.2008 1.2.2-Law on Financing of Realized Partly Realized financing political parties and Political Parties; election campaigns;

2.1-Monitoring, prosecution 2.1.1-Measure has not been Unrealized and try corruption cases of achieved; high-level; 5.11. 2008 MNE 1.1-Strengthening the legal 2008 1.1.1-Innovative Action Plan for Realized Realized 2008 Progress framework; implementation of the Program Report against the corruption and organized crime for 2008-2009; 2008-2009 EU Enlargement Strategy 2006 27.12.2008 1.1.2-Law on Prevention of Realized Partly Realized - Conflicts of Interest in Performing European Public Functions; Commission 2006 18.8.2009 1.1.3-Criminal Procedure Code; Realized Realized

21.1.2009 1.1.4-Law on Financing the Realized Partly Realized Election Campaigns for the President, Mayors and Presidents of Municipalities of Montenegro;

1.2-Ensuring independent Continuously 1.2.1-SAI conducts revision of Realized Partly Realized supervisory and auditing legality and successfulness of authorities` which will enforce management of state property and assess declaration of assets and obligations, budgets and financial funding of political parties; affairs;

1.3-Enhancing protection of 1.3.1-Measure has not been Unrealized whistle-blowers in practise; achieved;

229

2.1-Credible track-record in 2.1.1-Measure has not been Unrealized investigation, prosecution, and achieved; final conviction of high-level corruption;

2.2-Investigate capacities of the 2.2.1-Measure has not been Unrealized law enforcement bodies remain achieved; very limited and there is significant lack of expertise in financial investigation;

2.3-Insufficiently developed 2.3.1-Measure has not been Unrealized capacities within the Special achieved; Prosecutor Office and special anti-corruption police task force; 14.10. 2009 MNE 1.1-Improvement current 2010 29.7.2010 1.Strategy for fight against the Realized Realized 2009 Progress action plan against organised corruption and organize crime Report crime; 2010-2014;

2009-2010 EU 29.7.2010 1.1.1-Action Plan for Realized Realized Enlargement Implementation 2010-2012; Strategy - 1.1.2-National Commission for Realized Realized European implementation of Strategy for Commission fight against the Corruption and Organize Crime;

1.2-Introduction of 2010 1.2.1-Measure has not been Unrealized independent supervisory achieved; authorities evaluates asset declarations and financing of political parties;

1.3-Adoption of the new Law 1.3.1-Draft amendments on Law Unrealized Unrealized on Conflict of Interests; on Prevention of Conflicts of Interest in Performing Public Functions;

230

2.1-Lack of staff and skills in 2.1.1-Measure has not been Unrealized administrative bodies for achieved; detecting and investigating corruption (performance of Police Directorate’s internal control unit, Unit for combating organised crime and corruption, and the prosecution office);

2.2-Improvement of the Continuously Continuously 2.2.1-Organizing 3 seminars by Partly Realized Partly Realized investigative capacities of law the JTC and Police Academy for enforcement bodies; state bodies which deals with financial investigation, detecting, freezing, confiscating and managing assets acquired by criminal offenses;

2.3-Inter-agency cooperation Continuously Continuously 2.3.1-Employing 16 officials of Partly Realized Partly Realized needs to be further strengthen Police Directorate that work on and significant lack of expertise conduction of financial in modern financial investigation; investigation needs to be -Enhancing the capacity of SIT; Partly Realized Partly Realized improved;

2.4-Establishment of solid 2.4.1-Measure has not been Unrealized track record of conviction of achieved; high-level corruption cases; 9.11. Commission 17.2.2011 1.Action Plan of Monitoring 2010 Opinion on Recommendations from the Montenegro`s Opinion of the European application Commission; for - membership Ministry of Foreign Affairs and of the EU European Integration

2010-2011 21.7.2011 2.Innovative Action Plan for implementation of the Strategy

231

EU against the Corruption and Enlargement organize crime 2011-2012; Strategy - - Government of Montenegro European Commission 1.1-Improvement of the anti- IQ 2011 22.6.2011 1.1.1-Amendments to the Criminal Realized Realized corruption legal framework and Code; implementation of the government's anti-corruption IIQ 2011 22.7.2011 1.1.2- Law on Civil Servants and Realized Realized strategy and action plan; State Employees; establishment of a solid track record of proactive IIQ 2011 26.07.2011 1.1.3-Amendments on the Law on Realized Partly Realized investigations, prosecutions Prevention of Conflicts of Interest and convictions on the high- in Performing Public Functions; level corruption; IIIQ 2011 29.7.2011 1.1.4-Law on Financing Political Realized Partly Realized Parties;

IQ 2011 21.7.2011 1.1.5-Innovated Action Plan 2011- Partly Realized Unrealized 2012 for implementation of Strategy for fight against the corruption and organized crime;

2011 2011 2.1.1-Department for fight against Realized Partly Realized organized crime, corruption, terrorism and war crimes -SIT

IV 2011 7.11.2011 2.1.2-Investigation against 2 Realized Partly Realized communal officials in case ’Komunalni redari’;

21.3. 2011 -Prosecution against 12 persons, out of which 3 persons are high officials of ruling party due to in case ’Zavala’; 14.5.2011 -Prosecution against 2 persons in case ’Šarić’;

232

11.3.2011 -Prosecution against the 9.3.2011 individuals in cases:’Auto moto 23.8.2010 društvo Budva’, ’Mikulić’, 27.10.2011 ’Signal` and `Zeta’; 12.10. 2011 MNE 25.4.2012 1.1-Annex to Report to 2011 Progress European Commission on Report Montenegro`s Progress for 2012 – for a period of 1 September 2011-2012 EU 2011 to 25 April 2012; Enlargement Strategy 6.9.2012. 1.2-Annex to Report to - European Commission on European Montenegro`s Progress for 2012 Commission – for a period of 25 April 2012- 1 September 2012; 29.06. Resolution - 2012 which refers Ministry of Foreign Affairs and to 2011 European Integration Progress Report on Montenegro 1.1-Further trainings of judges Continuously 25.4- 1.1.1-12 activities of continuous Realized Realized - due to entry into force the new 15.12.2012 education and 4 activities of initial European provisions of the CPC and the education for 62 representatives of Parliament Criminal Code; judiciary in area of implementation of the new criminal legislations;

1.2-Limited implementation of 1.2.1-Measure has not been Unrealized new legislation on financing of achieved; political parties and election campaigns which does not provide fully effectiveness of SEC to conduct independent oversight and disciplinary measures towards the civil servants;

2.1-Convincing number of Continuously Continuously 2.1.1-Under the plea agreement, Realized Partly Realized final conviction, in particular Major of municipality Ulcinj was

233

for high-level cases as well as obliged to pay 10,000 euros to number of corruption cases in charity; which the seizure or - Final conviction was issued in confiscation of assets is case ’Zavala’- the Mayor of ordered; municipality of Budva is convicted to 5 years, his deputy to 4 years of imprisonment, and MP to 3 years of imprisonment;

2011 15.6.2012 2.1.2-Amendments to the Law on Realized Partly Realized Temporary Seized Assets; -Procedures for temporary seized assets were carried out in 3 cases;

2.2-Enhancing the institutional Continuously Continuously 2.2.1-10 police officers are Realized Partly Realized and administrative capacity of employed in the Police Directorate law enforcement bodies; in order to prevent corruption criminal offences; -24 trainings of financial investigation provided;

2.3-Improvement the inter- 2.3.1-Analysis of anti-corruptive Realized Partly Realized agency cooperation and institutional framework and exchange information between Analysis of effects of law enforcement bodies; establishment of the Agency for fight against the corruption; 22.5. Report from 1.1-Improvement of the anti- 8.3.2012 1.1-Annex to the European 2012 the corruption legal framework and Commission's Spring Report on Commission implemention of the meeting the 7 key priorities for to the government's anti-corruption the period 1 September 2011 - 1 European strategy and action plan; March 2012; Parliament - and the 2.1-Establishment of a solid Ministry of Foreign Affairs and Council on track record of proactive European Integration Montenegro`s investigations, prosecutions Progress in and convictions in corruption Note: all the reform activities the of high-level cases; conducted by the Montenegrin Implementati state bodies in 2012 are presented in documents:

234

on of -Annex to Report to European Reforms Commission on Montenegro`s - Progress for 2012 – for a period of European 1 September 2011 to 25 April Commission 2012; -Annex to Report to European Commission on Montenegro`s Progress for 2012 – for a period of 25 April 2012- 1 September 2012; Screening 27.6.2013 1.Action Plan for Chapter 23 12.11. Report Judiciary and Fundamental 2012 Montenegro Rights; Chapter 23 – Judiciary and fundamental 1.1-Strengthen and possibly June 2014 9.12.2014 1.1.1-Law on Agency for Anti- Realized Partly Realized right review the institutional Corruption; - framework for the fight against 1.1.2016 -Established Agency for European corruption of DACI; preventing corruption; Commission December 1.1.2-Adoption of the new Rules Partly Realized Partly Realized 2012 Progress 2015 of procedures on organization and 10.10. Report on systematization of working places 2012 Montenegro by increasing the number of working positions from 55 to 60; The EU Enlargement Strategy 1.2-Improve the system of asset June 2014 16.12.2014 1.2.1-Amendments of the Law on Realized Partly Realized 2012-2013 declarations, strengthening in the Prevention of Conflict of - particular the supervisory Interest; European competencies and the Commission professional capacity of the March 2014- March 2015 1.2.2-Improve system for efficient Realized Partly Realized Commission for prevention of March 2015 checks of data accuracy provided Resolution on conflict of interest to ensure from the reports of the public 28.04. the 2012 effective and substantial checks officials through the new form of 2013 Progress on assets, and introduce checks of data assets; Report on measures preventing conflicts Montenegro of interest going beyond September Continuously 1.2.3-Establishment of the Realized Partly Realized - holding double public offices; 2014 Commission`s software which provides automatic networking

235

European and access to data bases of bodies Parliament and institutions on assets and incomes of public officials; 16.10. 2013 Progress 2013 Report on December Continuously 1.2.4-Provided trainings for the Realized Realized Montenegro 2013- employees in the Commission and January/Dece Agency for Anti-Corruption The EU mber 2014 Initiative in terms of control Enlargement competences and use of data bases Strategy prescribed within the Law; 2013-2014 - European 1.3-Improve the system of September 16.12. 2014 1.3.1-Law on Financing Political Realized Partly Realized Commission political party funding, 2013 Entities and Election Campaigns; ensuring reliable reporting as well as effective supervision December 1.3.2-Agency adopted Rules, Realized Partly Realized 8.10. 2014 Progress and sanctioning powers by an 2013 Guidelines, Instruction. 2014 Report on independent authority. Montenegro Strengthen the capacities of the June 2014 February 2015 1.3.3-Strengthening the Realized Partly Realized monitoring bodies – SAI and administrative capacities of the The EU SEC and ensure a clear division SAI and SEC: Enlargement of tasks and cooperation -Adopted Rulebook on internal Strategy framework. The organisation and systematization 2014-2015 recommendations of GRECO based by which 1 person in SEC - should be followed-up; and 8 persons in SAI was European employed; Commission -SAI employed 10 out of 13 persons for controlling the 11.03. Resolution on political parties; 2015 the 2014 -Ensuring accommodation Progress capacities, financial needs and Report on forming expert service of SAI; Montenegro - European 1.4-Ensure that NGOs are Since July 1.4.1-Anti-Corruption Committee Partly Realized Partly Realized Parliament involved in the anticorruption 2013 two held 11 sessions in 2015 in which agenda; times per year attended 3 NGO`s representatives; 10.11. -In the period between the 1 2015 January and 30 June 2016 the

236

2015 Progress Anti-corruption committee held 3 Report on sessions in which attended 2 Montenegro NGO`s representatives;

The EU Enlargement 2.1-Ensure independent, November 26.2.2015 2.1.1-Law on Special Prosecutor`s Realized Realized Strategy effective specialised 2014 Office; 2015-2015 investigation/prosecution -Special Prosecutor’s Office for - bodies in repressing corruption; fight against organized crime, European corruption, terrorism and war 10.03. Commission crimes; 2016 Resolution on the 2015 2.2-Amend the Criminal October 2014 7.7. 2015 2.2.1-Amendments to the Criminal Realized Partly Realized Progress Procedure Code where needed Procedure Code; Report on and ensure its effective Montenegro implementation; - October 2014 9.11.2015 2.3.1-Law on Confiscation of Realized Partly Realized European Asset Benefits Acquired by the 9.11. Parliament Criminal Activities; 2016 2016 Progress Report on 2.3-Improve the use of February – 2014 2.3.2-Established specialised Realized Partly Realized Montenegro financial investigations, December organisational units within the possibly through establishing a 2014 Criminal Investigation Police The EU team of highly qualified through changes in organisation Enlargement investigators for this purpose; and job description: Strategy -Group for conducting financial 2016-2017 investigations, highly-technical - criminal, human trafficking was European established with 5 employees; Commission -Group for prevention of smuggling, human trafficking and illegal migrations with 3 employees; -Group for prevention of high- tech crime with 1 employee; -Group for prevention of terrorism, weapon smuggling and

237

explosive materials with 3 employees;

May 2014 Continuously 2.3.3-Trainings for the employees Realized Realized in the special unit of the Police Administration for implementation of financial investigations, as well as the multidisciplinary team and prosecutors and judges in combating corruption by the JTC;

2.4-Improve the cooperation Continuously 9.4.2014 2.4.1-Protocol on Cooperation of Realized Realized and information exchange the Supreme State Prosecutor’s between authorities involved in Office, Ministry of Interior and the fight against corruption, Police Directorate in the pre-trial including also tax and other and criminal procedures; only indirectly linked authorities; January 2014, 1.6.2015 2.4.2-Agreement on standard Realized Unrealized and operative procedures between the continuously Tax Administration and Police Directorate; 2015 -Agreement between Ministry of Interior, Police Directorate and Supreme State Prosecutor’s Office on securing conditions on providing conditions for the smooth operation of the State Prosecutor's Office by the Police

Administration; 2015 -Agreement between Ministry of

Interior, Police Directorate and Supreme State Prosecutor’s Office

for the smooth operation of the

courts and maintaining order;

238

2.5-Procedures for seizure, October 2014 9.11.2015 2.5.1-Law on Confiscation of Realized Partly Realized confiscation and management Asset Benefits Acquired by the of proceeds of crime need to be Criminal Activities; further regulated and the professional capacity of the December 2014-2015 2.5.2-Recruitment of two civil Realized Realized relevant State Agency 2014 servants in the Public Property strengthened; Administration;

December 2013 2.5.3-Established the electronic Realized Realized 2013 register of seized property which contains information on the number of decisions, the name of the court or body responsible for conducting the proceedings, the type and the estimated value of the property and the person from whom the property has been seized;

2015 8.3.2016. 2.5.4-Establishment of the Realized Realized Directorate of assets;

2.6-Take the necessary steps to make the system of whistle- September 30.7.2013 2.6.1-Amendments to the Criminal Realized Partly Realized blower protection more 2013 Code; effective in practice;

239

5.3 Regional cooperation and developing good bilateral relations with the enlargement countries and Member States59 5.3.1 The SAP conditions and domestic alignment

5.3.1.1 Pre-negotiation stage

On 15 October 2007 Montenegro signed the Stabilisation and Association Agreement (SAA) with the EU that came enter into force on 1 May 2010 (Council of the European Union and European Commission, SAA 2007, hereinafter referred to as the SAA). The SAA, as the most important instrument of the Stabilization and Association Process (SAP), is a legal basis and the first contractual agreement establishing special relations between the EU and Montenegro as the potential candidate country from the Western Balkan region (Miščević 2009: 152).

The Agreement laid special importance to the issue of development of regional relations among the enlargement countries and Member States by devoting the whole chapter – Title III Regional Cooperation to strengthening regional cooperation and improving good bilateral relations with states included or not-included by the SAA. Legal basis for developing regional cooperation and maintaining good bilateral relations was prescribed within legal provisions of the Articles 14, 15, 16 and 17 of the SAA.

In that regard, the legal regulations over strengthening regional cooperation required fulfilment of certain sets of the SAP conditions by Montenegro as the contracting party. Hence, the Article 14 of the SAA emphasized necessity of Montenegro’s active promotion of regional cooperation through its full commitment to regional peace, stability and development of good neighbourly relations. In addition, further efforts in improving regional cooperation by Montenegro were to be supported by the Union by assisting programmes that support projects of regional or cross-border dimensions through technical assistance programmes (SAA 2007, Article 14: 7).

Visibly, the legal provisions stipulated within the SAA influenced Montenegro as a signatory party to demonstrate additional efforts in strengthening regional cooperation and good neighbourly relations not only with remaining Western Balkan states that signed the SAA, but also with the EU member states, and with other candidate countries to the EU accession not included in the SAP. In that respect, the Article 15 – Cooperation with other countries

59 This chapter does not contain the Appendix due to state’s fulfillment of the SAP conditions.

240 having signed a Stabilization and Association Agreement foresaw Montenegro to start negotiations after signing the Agreement with other Western Balkan states included in the SAA in order to conclude bilateral conventions and regional cooperation within the scope of cooperation between the countries concerned. According to the legal provisions, main areas of bilateral cooperation between the SAA countries are: political dialogue, establishment of free trade areas consistent with relevant WTO provisions, mutual concessions concerning the movement of workers, establishment, supply of services, appropriate payments and movement of capital, cooperation in the field of Justice, Freedom and Security, etc. However, the Article 14 prescribed certain timeframe limitations with reference to the establishment of bilateral political and economic areas of cooperation between the SAA states, as well as specified sanctions for the contracting parties if these were not delivered. Thus, the legal regulation clearly emphasized that ‘these conventions shall be concluded within two years after the entry into force of this Agreement,’ while the readiness of the SAA country to conclude those conventions would be main conditions for further advance of relations between Montenegro and the Union (SAA 2007, Article 15: 7-8).60

Furthermore, the Article 16 – Cooperation with other countries concerned by the Stabilisation and Association process obliged Montenegro to start pursuing regional cooperation with other states, respectively with the EU member states included in the SAP in some or in all fields of cooperation covered by this Agreement and thus in that field of common interests (SAA 2007, Article 16: 8). Finally, the Article 17 – Cooperation with other countries candidate to EU accession not concerned by the SAP foresaw the need for Montenegro to foster regional cooperation in areas of defined conventions with other candidate countries for the EU membership such as Turkey, and in any of the fields of cooperation covered by the SAA. In this sense, the Union asked Montenegro to ‘start negotiations with Turkey which has established a customs union with the Community, with a view to concluding, on a mutually advantageous basis, an Agreement establishing a free trade area in accordance with Article XXIV of the GATT 1994 as well as liberalising the establishment and supply of services between them at an equivalent level of this Agreement in accordance with Article V of the GATS.’ According to the legal provisions, the negotiations between Montenegro and Turkey were supposed to be opened as soon as possible at that time, i.e., before the end of the transitional period referred to in the Article 18 (1) (SAA 2007, Article 16: 9).

60 The Union highlighted that the same convection activities will be conducted with the remaining countries of the region once these states will have signed SAA. For more details: SAA 2007, Article 15: 7-8.

241

On 15 October 2007 Montenegro signed the Stabilisation and Association Agreement (SAA) with EU, which came into force on 1 May 2010. Consequently, after the signing of the SAA as being the initial contractual relationship agreement between the potential candidate country to join the EU and the EU itself and completion of its ratification in the Parliament, the Interim Agreement between the EU and Montenegro came into force on 13 November 2007. Based on obligations stemming from the SAA, the Government of Montenegro introduced the National Integration Program (NPI) 2007-2012 in June 2008 as the main strategic framework for internal democratic and economic reforms, thus highlighting the national strategy for adopting the acquis communautaire (Vlada Crne Gore, Nacionalni program za integraciju (NPI) za period 2008-2012, hereinafter referred to as the NPI 2008). The NPI, as the main strategic domestic document for overall implementation and monitoring of fulfilment of the EU requirements contained main measures, activities, and/or plans for the implementation of the SAA. Additionally, the NPI comprised of a number of other relevant strategic documents, namely the Action Plan for the implementation of recommendations from the European Partnership and the Action Plan for strengthening the administrative capacities for the implementation of the SAA (NPI 2008: 2-3).

Shortly after the SAA was signed, the Parliament of Montenegro adopted the Resolution on implementation of Montenegro’s obligation in the framework of the Stabilization and Association Agreement on 27 December 2007. The Resolution stressed that Montenegro’s full membership in the EU remained a strategic national goal fully supported by the Parliament. Hence, following the Parliament’s commitment to the fulfilment of the SAA conditions, the Assembly called for the Government to submit once in every three months a report on overall activities under the SAP to the Committee for International Cooperation and European Integration (Vlada Crne Gore, Prvih deset kvartalnih izvještaja Vlade Crne Gore posvećenih ostvarivanju prosecu stabilizacije i pridruživanja, jun 2005-decembar 2007: 201-202).

Given sub-chapters deal with Montenegro’s multilateral obligations through its active involvement in various regional organizations and improvement of bilateral cooperation with the enlargement countries included or not in the SAA and with the appropriate EU member states.

242

Contribution to peace and stability in the region by active participation in regional initiatives Strengthening regional cooperation and developing good bilateral relations with the enlargement countries and the EU member states by fulfilling terms of the SAA remained in this phase one of the most important political conditions for Montenegro’s advancement in the accession process.

Prior to signing of the SAA and the adopted resolution by the Parliament, the country during 2006 and 2007 conducted certain activities in strengthening regional cooperation through acquisition of full membership in regional initiatives. In particular, shortly after gaining its independence, Montenegro became the member of: - Organization for Security and Co-operation in Europe (OSCE) on 22 June 2006, whose range of activities covers three dimensions of security – military-political, economic- ecological, and human; - Central European Initiative (CEI) on 1 August 2006, whose main goals are related to improvement of cooperation between the countries of Central, East, and Southeast Europe through establishment of stable democracies and market economies, and providing assistance to the enlargement countries for the EU membership; - Migration, Asylum, Refugees Regional Initiatives (MARRI) on 2 October 2006, whose main aims are to address issues of human movement in the Western Balkans through promotion of closer regional cooperation and a comprehensive, common, and harmonized approach to asylum, migration, border control, visa regimes, and displaced persons; - Central European Free Trade Agreement (CEFTA) on 1 January 2007, whose main goal is establishment of a zone of free trade between non-EU member states; - Centre for Security Cooperation (RACVIAC) on 21 March 2007, whose main aim is related to strengthening stability and security in Southeast Europe; - Council of Europe (CoE) on 11 May 2007: one of the oldest and most important regional organizations promoting democracy, protection, and promotion of human rights and ensuring rule of law within its member states; - South-East European Cooperation Process (SEECP) on 11 May 2007, whose main goals are to promote and strengthen good neighbourly relations between the countries of Southeast Europe, and to transform the region in the zone of peace, security, stability, and cooperation;

243

- Adriatic and Ionian Initiative (AII) on 1 June 2007, which represents a forum of exchanging political opinions and conducting multilateral cooperation in many fields of transport, maritime affairs, tourism, education, environmental protection, cultural heritage protection, and fight against organized crime (Vlada Crne Gore 2018a; NPI 2008: 495).

Arguably, the EU did not impose any kind of adoption pressure on the state in order to comply with the given requirements in this particular phase. Rather, the membership in above- mentioned regional initiatives was solely the state’s own decision to align with the SAP conditions although the country still did not sign the SAA with the EU. Therefore, it might be reasonable to claim that Montenegro showed already in the early stage of its European path a wish to Europeanize itself although there were no legal obligations stating so.

Concerning the Union’s demand over Montenegro’s active promotion of regional cooperation through its full commitment to regional peace and stability in 2008 and 2009, the state overall made satisfactory results. The country: - gained membership in South-East European Cooperation Initiative (SECI) in June 2008, whose main aim is to foster regional cooperation in fields of fight against terrorism and organized crime; - achieved membership in US-Adriatic Charter on 4 December 2008 for aiding its attempts to join the NATO Alliance; - was committed to regional activities by means of active participation in various regional initiatives, including CEI, MARRI, CEFTA, RACVIAC and AII, and in transformation of the Stability Pact for South-East Europe into the South-East European Cooperation Process (SEECP) and the Regional Cooperation Council (RCC) in 2008 (Vlada Crne Gore 2018a; European Commission 2008b: 19; European Commission 2009b: 19).

Based on Montenegro’s submitted application from 15 December 2008, the European Commission introduced the Opinion on Montenegro’s application for membership of the European Union on 9 November 2010 (European Commission 2010b). Following the progress in addressing the Copenhagen (political) criteria from 1993 as well as the SAP conditions from 1999, the Commission recommended to the Council to grant Montenegro the status of candidate country (European Council 2010: 12). It was clearly indicated that Montenegro broadly satisfied the SAP conditions by playing a constructive regional role through active participation in regional initiatives and that Podgorica maintained good neighbourly relations with the regional countries. However, the Commission also underlined the necessity of

244

Montenegro to continue its constructive engagement in the regional cooperation by developing good neighbourly relations with the remaining regional states and address open bilateral issues with the neighbouring countries as well (European Council 2010: 10). As a result, given the positive opinion by the Commission on Montenegro’s application for the EU membership, the European Council in its conclusions on 17 December 2010 agreed to grant Montenegro the status of candidate country.

After gaining the candidate country status, Montenegro continued to conduct positive actions in promoting regional cooperation through its full commitment to regional peace and stability, and also by improving bilateral relations with the SAA countries, Member States, and other candidate countries not included in the SAA during 2010 and 2011. In this respect, Montenegro continued to play a constructive role in participating in various regional initiatives through its chairmanship of CEI (2010), SEECP (2010), AII (2010-2011), and US-Adriatic Charter (2011). In particular, under the chairmanship within the South-East European Cooperation Process (SEECP), Montenegro adopted the Regional Strategic Document and Action Plan on Justice and Home Affairs 2011-2013 in March 2010. By the same token, the candidate country played a visible regional role in strengthening the regional cooperation by active participation in other regional initiatives, notably CEFTA, MARRI, RACVIAC, and RCC, and continued to intensify its regional actions by supporting the process of reconciliation in the Igman Initiative61 and RECOM,62 respectively various non-governmental organizations that were dealing by the war consequences (Ministarstvo vanjskih poslova i evropskih integracija, Treći izvještaj o realizaciji obaveza iz Sporazuma o stabilizaciji i pridruživanju u periodu od 1. april-30. jun 2011. godine, 2011: 3-4, hereinafter referred to as Treći izvještaj o realizaciji obaveza iz SSP 2011; European Commission 2012b: 22).

Based on already provided empirical descriptive analysis, the externally driven social learning model based on the logic of appropriateness can be applicable to the issue of strengthening regional cooperation during the pre-negotiation phase. Under the strategy, it seems that clear mechanisms of the Union’s explanatory social driven learning model in

61 The mission of the Igman Initiative is to promote and facilitate regional cooperation among signatory parties to the Dayton Agreement and to influence their governments to resolve key issues related to citizens of the four countries – Bosnia and Herzegovina, Croatia, Montenegro and Serbia. For more details: http://www.igman- initiative.org/. 62 RECOM- Coalition for Reconciliation Commission is a regional commission for establishing facts about war crimes and other serious violations of human rights committed in former Yugoslavia from January 1, 1991 until December 31, 2011. For more details: http://recom.link/.

245 inducing rules and norms worked appropriately both at the EU and the domestic level. In particular, Montenegro complied with the EU demands in strengthening regional cooperation through its active involvement in the regional initiatives because it got persuaded: 1) by appropriateness and legitimacy of the EU rules and procedures: rules as clearly determined, being the result of a legitimate rule-making process, and perceived by the target country as the Union’s creation and ownership; 2) by the state’s identification with the EU values and norms; 3) by the positive normative resonance with domestic rules:63 the state’s openness to fulfil the SAP conditions as a result of a long lasting political crisis in the region (Schimmelfennig and Sedelmeier 2005: 18-20; Sedelmeier 2011: 15).

Reconciliation and climate conducive to addressing open bilateral issues and legacies of the past

After declaring its independence in 2006, Montenegro continued to play a constructive role in establishing good bilateral relations with the neighbouring countries, Member States, and other enlargement countries not included in the SAA. In this respect, overall political relations with other regional countries were good, and Montenegro continued to play a satisfactory role in maintaining peace and stability in the region during 2007 by developing cooperation with the neighbouring counties in the fields of border control, environmental protection, and also energy supply. Bilateral relations with Albania, Bosnia and Herzegovina (BIH), and former Yugoslav Republic of Macedonia (FYRoM) significantly advanced in this period. Albania and FYRoM officially recognized Montenegro as an independent state on 12 June 2006, while diplomatic relations between these countries were established on 1 August 2006 and on 14 June 2006 respectively. Bosnia and Herzegovina officially recognized Montenegrin independence on 21 June 2006 and established diplomatic ties on 14 September 2006 (Vlada Crne Gore 2018b; European Commission 2007b: 17).

The relations with Serbia were overall good after the dissolution of the State Union of Serbia and Montenegro in 2006. Serbia officially recognized Montenegro as an independent state on 15 June 2006 and established diplomatic relations with Podgorica on 22 June 2006. Based on the decision to establish diplomatic relations, the Ambassador of Montenegro to Serbia Anka Vojvodić was accredited in December 2006. However, although both states showed the will to improve political relations, certain open bilateral issues between two

63 Domestic facilitating factors are understood under the term resonance in this research. Please see: Schimmelfennig and Sedelmeier 2005: 20.

246 countries continued to exist even after the separation, particularly issue of dual citizenship. Relations with Croatia advanced in this period as well. Croatia officially recognized Montenegro on 12 June 2006 and established diplomatic relations on 7 July 2006. Both sides showed great willingness to resolve the then issues of missing assets, persons, and refugees. However, border demarcation dispute on the Prevlaka Peninsula remained unsolved in this period, although temporary border regime initiated in 2002 functioned without any obstacles (Vlada Crne Gore 2018b; European Commission 2007b: 17).

Concerning the legal requirement within the SAA over development of bilateral relations with the Member States, Montenegro signed an agreement on police cooperation with Slovenia and Romania in 2007 (Vlada Crne Gore 2018b; European Commission 2007b: 17).

By the same token, with reference to the issues of reconciliation and climate conducive to addressing open bilateral disputes and legacies of the past, Montenegro continued to improve bilateral relations with the neighbouring enlargement countries, and the Member States during 2008. The potential candidate country played a constructive role in maintaining peace and security in the region, at the same time providing additional efforts in enhancing regional stability through cooperation in various areas, such as border control, environmental protection, and energy supply. In that respect, relations with Albania were developed significantly. Bilateral relations were improved when the Prime Minister of Montenegro visited Albania on 25 November 2008, which resulted in a decision to construct a joint border crossing at Sukobin- Murićani, sign an agreement in sharing practical experience in the adoption of the acquis, and align with the EU policies in the field of judiciary. Bilateral relations with Bosnia and Herzegovina were further improved. In 2008, the Prime Minister, Minster of Foreign Affairs, and Speaker of the Parliament of Montenegro officially visited Sarajevo and initiated strengthening mutual cooperation in the field of defence, police, cross-border cooperation, and finally civil protection (Vlada Crne Gore 2018b; European Commission 2008b: 19).

Bilateral relations with Croatia were intensified in mutual official visits of the Prime Minister and Speaker of the Parliament of Montenegro to Zagreb and vice versa in 2008, which consequently resulted in enhancing further cooperation in the areas of defence and water management. Concerning the open border issue over the Prevlaka Peninsula, both states agreed to settle the border demarcation dispute by international arbitration at the International Court of Justice (ICJ). In this sense, both countries delegated their commission in order to set up the legal framework while a temporary border control (of mixed Croatian and Montenegrin police

247 forces) worked without any obstacles. Montenegro recognized Kosovo as an independent state in October 2008 following Kosovo’s decision to unilaterally declare independence from Serbia in February 2008. Bilateral relations with Serbia were overall satisfactory, though certain downgrading trends between the two countries were observable following Montenegro’s decision to recognize Kosovo as an independent state. Nevertheless, further developments of bilateral relations were seen in signing of the agreements on defence, social security, and culture. However, the issue of dual citizenship remained solved in this period (Vlada Crne Gore 2018b; European Commission 2008b: 19-20).

During 2009, Montenegro took further activities to strengthen bilateral relations with the enlargement countries and the Member States. Correspondingly, the potential candidate state overall continued to play a constructive role in maintaining good neighbouring relations through further intensification of bilateral relations with the rest of the region in the areas of tourism, culture, science, technology, and cross-border cooperation. In this respect, relations with Albania were further intensified with the official visit of the President Sali Berisha and Minister of Foreign Affairs of Albania Ilir Met, resulting in signing agreements on cooperation in the areas of culture, education, and science. Furthermore, two neighbouring states opened joint cross-border point Sukobin-Murićani on 18 June 2009. Bilateral relations with Bosnia and Herzegovina developed even further through official visit of the President of Montenegro Filip Vujanović to Sarajevo on 22 and 23 May 2009, and through improvement of the cross- border cooperation by signing an agreement on joint border patrols (Vlada Crne Gore 2018b; European Commission 2009b: 19-20).

Relations with Croatia were satisfactory as well. Good bilaterla relations between the two countries were intensified when the Prime Minister of Croatia, Jadranka Kosor, visited Podgorica on 22 June 2009 and signed agreements on protection of rights of Montenegrin minority in the Republic of Croatia and Croat minority in Montenegro in Zagreb on 14 January 2009, as well as an agreement on cooperation in the areas of science and technology. Furthermore, the enlargement state achieved visible results in settling peacefully the border demarcation dispute over the Prevlaka Peninsula by committing the dispute to the International Court of Justice (ICJ). At that time, the temporary border agreement of joint police control functioned without any problems (Vlada Crne Gore 2018b; European Commission 2009b: 19).

Cooperation with FYRoM was improved when agreements on dual citizenship, EU affairs, air traffic, tourism, agriculture and protection in the event of natural disasters. Relations

248 with Kosovo were overall good, and no further developments were observable in economic, social, or cultural policies. Development of bilateral relations with Serbia decreased following Montenegrin decision to recognize Kosovo as an independent state. As a result, former Montenegrin Ambassador to Serbia, Anka Vojvodić, was declared as persona non-grata in October 2008. Despite certain political tensions, relations between two countries were overall satisfactory. Further development of political cooperation was intensified when the President of Montenegro Filip Vujanović officially visited Belgrade on 18-20 May 2009, as well as when official visit of the Prime Minister of Serbia, Mirko Cvetković, took place in Podgorica on 15 October 2009. Additional improvements were also seen in strengthening economic relations, particularly through agreements on judiciary, joint border patrol, and joint police cooperation in fighting organized crime. However, as it was the case with previous years, two neighbouring states did not manage to make any progress on the issue of dual citizenship (Vlada Crne Gore 2018b; European Commission 2009b: 19-20).

Concerning the development of bilateral relations with other candidates not included in the SAA, cooperation with Turkey was intensified through the official visit of the President Abdullah Gül, the Minister of Foreign Affairs Ahmet Davutoğlu, and the Speaker of the Assembly of Turkey Mehmet Ali Şahin to Podgorica in 2009, which resulted in two agreements on free-trade and defence being signed. Finally, Montenegro was committed to development relations with the EU Member States, in particular with Italy, with the EU remaining the main trading partner (Vlada Crne Gore 2018b; European Commission 2009b: 20).

During 2010 and 2011, Montenegro demonstrated continuous efforts in process of reconciliation and climate conducive to addressing open bilateral issues and legacies of the past. In particular, bilateral relations with Albania were satisfactory and they were being further developed through political, economic, and legal cooperation - the official visit of the Minister of Foreign Affairs of Montenegro, Milan Roćen, to Tirana on 6 June 2011, connecting the electro-energy system by linking cross-border areas of Skadar (Albania) and Podgorica (Montenegro), and signing of an agreement on reciprocal travel of citizens of both countries without passport. The cooperation with Bosnia and Herzegovina was intensified through the official visit of the Prime Minister Igor Lukšić and the Speaker of the Assembly of Montenegro Ranko Krivokapić to Sarajevo (2011) and the Speaker of the Parliament of BiH to Podgorica (2011). Additionally, agreements on border crossings for local and international transport in 2010, on strengthening defence capabilities in 2010, and on security of information in 2011

249 were signed between the two countries. In addition, other agreements entered into force, namely the ones on cooperation on mutual legal assistance in civil and criminal matters, on mutual recognition of decisions in criminal matters, tourist cooperation, and exchange of data in regards to social insurance. However, open bilateral dispute between two countries, especially border demarcation issue was still pending and remained unsolved (Vlada Crne Gore 2018b; Treći izvještaj o realizaciji obaveza iz Sporazuma o stabilizaciji i pridruživanju u periodu od 1. april-30. jun 2011. godine, 2011: 4-5; Ministarstvo vanjskih poslova i evropskih integracija, Četvrti izvještaj o realizaciji obaveza iz Sporazuma o stabilizaciji i pridruživanju, jul-septembar 2011. godine, 2011: 4, hereinafter referred to as Četvrti izvještaj o realizaciji obaveza iz SSP 2011; Ministarstvo vanjskih poslova i evropskih integracija, Peti izvještaj o realizaciji obaveza iz Sporazuma o stabilizaciji i pridruživanju, oktobar-decembar 2011. godine, 2012: 5, hereinafter referred to as Peti izvještaj o realizaciji obaveza iz SSP 2012; European Commission 2011b: 22).

Bilateral relations with Croatia continued to be strengthened. Developments of political relations were observable through the official visit of the President of Montenegro Filip Vujanović to Zagreb on 10 and 11 October 2011 and visit of the Speaker of the Parliament of Croatia Boris Šprem to Podgorica on 16 and 17 October 2011. In addition, further efforts in intensifying relations were particularly seen in economic and trade relations, water management, and tourism. Also, an agreement on police cooperation was signed, while the extradition agreement with Croatia covering its citizens involved in organized crime was being implemented. By the same token, the candidate country demonstrated significant progress in peacefully settling its border dispute over the Prevlaka Peninsula by committing the dispute to the International Court of Justice. At that time, there were no issues in joint police control of the border. Relations with FYRoM were overall good and further developed through cooperation in the fields of tourism, education science, economy, and trade relations. In addition, cooperation was intensified through extradition agreements covering Montenegrin citizens having engaged in organized crime, corruption and money laundering felonies, and through an agreement on dual citizenship. Montenegro continued to have a stable relation with Kosovo. Political relations were improved through the first official visit of the Minister of Foreign Affairs of Montenegro Milan Roćen to Priština. A bilateral agreement related to registration of displaced persons from Kosovo living in Montenegro entered into force on 29 June 2011, while readmission agreement was signed on the same day. However, although some progress was made in development of trade and economic relation, the issue of border

250 demarcation, as well as recognition of Montenegrin minority in Kosovo, were still pending. Cooperation with Serbia was satisfactory. Political relations were strengthened through the mutual official visit of the Prime Minister of Montenegro Igor Lukšić to Belgarde, and the Prime Minister of Serbia Mirko Cvetković to Podgorica in July and December 2011. Relations were further improved through cooperation in the fields of science, trade, economy, and education. However, border demarcation dispute was still pending, and the issue of dual citizenship remained unsolved (Vlada Crne Gore 2018b; Treći izvještaj o realizaciji obaveza iz SSP 2011: 5-7; Četvrti izvještaj o realizaciji obaveza iz SSP 2011: 4-5; Peti izvještaj o realizaciji obaveza iz SSP 2012: 6; European Commission 2011b: 23).

Relations with Turkey were continuously good and overall satisfactory. Cooperation was intensified through trade relations, especially through humanitarian aid provided to Montenegro following the floods having affected the state in December 2010. Finally, Montenegro continued to maintain friendly relations with Italy when signing agreements on defence, economy, and trade cooperation (Vlada Crne Gore 2018b; Treći izvještaj o realizaciji obaveza iz SSP 2011: 5, 11; Četvrti izvještaj o realizaciji obaveza iz SSP 2011: 3, 7; Peti izvještaj o realizaciji obaveza iz SSP 2012: 6, 9; European Commission 2011b: 23).

Evidently, the externally driven social learning model based on the logic of appropriateness is also applicable in the field of reconciliation and climate conducive to addressing open bilateral issues during the pre-negotiation stage. Following the theoretical conception of constructivist institutionalism, the principle of socialization as central mechanism for inducing the EU standards functions smoothly primarily due to existing number of both facilitating EU and domestic factors. More precisely, it would be grounded to argue that the Government aligned with the Union’s requirements because it was convinced by the EU rules and processes (clear formulation of demands, legitimacy of decision-making process, and perceiving defined demands as the Union’s ownership), it identified with the EU values and norms, and saw the necessity in establishing specific legal requirement as the result of past political crises in the region (Schimmelfennig and Sedelmeier 2005: 18-20; Sedelmeier 2011: 15).

251

5.3.1.2 Negotiation stage

Contribution to peace and stability in the region by active participation in regional initiatives

Montenegro as the EU candidate country continuously demonstrated significant will to improve its regional cooperation through active participation in regional initiatives, maintaining regional peace, security, and stability, and developing good neighbourly relations with the enlargement countries and other EU member states during the process of the accession negotiation. Identically, the Union clearly outlined the importance of addressing the SAP conditions as a main challenge for successful completion of the EU accession process.

In this sense, following the Union’s concerns over the state’s contribution over strengthening regional cooperation, the candidate country in the period between 2012 and 2016 played constructive role through the active participation in the regional initiatives, namely CEFTA, CEI, MARRI, RACVIAC, AII, SEECP, RCC, and US-Adriatic Charter. Furthermore, the state strongly supported regional organizations reaffirming the idea of regional reconciliation, such as the Igman Initiative and RECOM (Vlada Crne Gore 2018a; Ministarstvo vanjskih poslova i evropskih integracija, Šesti izvještaj o realizaciji obaveza iz Sporazuma o stabilizaciji i pridruživanju, januar-mart 2012. godine, 2012: 8 (hereinafter referred to as Šesti izvještaj o realizaciji obaveza iz SSP 2012; Ministarstvo vanjskih poslova i evropskih integracija, Sedmi izvještaj o realizaciji obaveza iz Sporazuma o stabilizaciji i pridruživanju, april-jun 2012. godine, 2012: 7-8, hereinafter referred to as Sedmi izvještaj o realizaciji obaveza iz SSP 2012; European Commission 2012c: 16; European Commission 2013b: 11; European Commission 2014b: 12; European Commission 2015b: 21; European Commission 2016: 21).

Positive impetus towards strengthening regional cooperation and maintaining good neighbourly relations among the countries of the region was seen in Montenegro’s proposal to establish ‘the Western Balkan Six’ regional initiative: high-level political dialogue between regional leaders aiming to accelerate their process of European integration. This initiative of the Western Balkan Six (WB6) represented good initiative towards institutionalization of relations between non-EU member states in the process of European integration, foreseeing the establishment of a common WBs Parliament,64 formation of common Balkan police (BALPOL), establishment of the Regional Centre for fight against corruption and organized

64 According to Montenegro’s proposal each state would delegate 10 representatives.

252 crime, common labour market, education, and health care. Also, according to a working document, all actions were to be supported by Croatia and Slovenia aiming to simplify smooth border crossing in the region to the level of abolition of passports as identity documents. As a result, first meeting at the political directors’ level took place in Budva in July 2013 (Ministarstvo vanjski poslova i evropskih integracija, Diplomarius broj 1, 2013: 47-48; European Commission 2013b: 11).

Apart from the Western Balkan six initiative, special importance to further development of regional relations in the region was given through the ‘Berlin process.’ The Berlin Process was initiated by the German Chancellor Angela Merkel on 28 August 2014 and aimed at further enhancement of regional cooperation in the Western Balkan and assistance to these states in their European integration. The process has been supported by the European Commission, the EU member states – Austria, Croatia, France, Germany, Italy, Slovenia and the United Kingdom, and various international donors. The Process’ connectivity agenda refers to connecting people (social dimension), economies (economic dimension), and states (political dimension) of the region through cooperation in the areas of transport, infrastructure, economic connectivity, youth cooperation, and cooperation among businesses and civil societies. It has also encouraged intergovernmental cooperation through the establishment of the Regional Youth Cooperation Office (RYCO), the Western Balkans Chambers Investment Forum (WBCIF), and the Western Balkans Funds (WBF), as well as inspired meeting of regional civil society organizations (Civil Society of the Western Balkans Summit Series), youth organizations (Youth Forum), and business association (Business Forum) (Civil Society Forum of the Western Balkans Summit Series 2014).

The goal of the Process was underlined by its Chair within the Final Declaration stating that the Conference ‘should provide a framework for a period of four years,65 during which we will further our endeavours to make additional real progress in the reform process, in resolving outstanding bilateral and internal issues, and in achieving reconciliation within and between the societies in the region,’ but also in enhancing ‘regional economic cooperation and laying the foundations for sustainable growth.’66 Through the support of the Commission’s IPA and the Member States, the participant states agreed to further cooperate within the framework of the Energy Community for South East Europe, particularly in regards to energy security,

65 2014-2018. 66 Final Declaration by the Chair of the Conference on the Western Balkans 2014: 1.

253 energy efficiency and climate protection, and reducing youth unemployment in the region. Also, they agreed on defining and extending three Trans-European Transport Networks core corridors to the Western Balkan in April and June 2015 by determining short-term priorities, namely simplifying border crossing procedures, road safety, and maintenance schemes of these corridors, which was supposed to be achieved before the Paris summit (Berlin Process, Final Declaration by the Chair of the Conference on the Western Balkans 2014).

After one year of the Berlin Western Balkan Summit, high-ranking officials of the Western Balkan countries meet in Vienna on 27 August 2015 for the second Summit Meeting on the Western Balkans in the framework of the Berlin Process. While the Western Balkans achieved sustainable progress in the areas of transport67 and energy connectivity,68 with an agreement of establishment of youth cooperation office in Tirana, the EU member states outlined the importance of strengthening regional cooperation and solving outstanding bilateral disputes. As a result, the Western Balkan states committed themselves to resolving any open questions through bilateral negotiations or other means of peaceful settlement of disputes through international arbitration. In this sense, the participating states welcomed signing of the border agreement between Bosnia and Herzegovina and Montenegro at the margins of the Vienna Summit as a positive example among the Western Balkans in solving border demarcation disputes (Berlin Process, Final Declaration by the Chair of the Vienna Western Balkans Summit 2015; Annex 2 – Join Declaration on the establishment of the Regional Youth Cooperation Office in the Western Balkans; Annex 3 – Regional Cooperation and the Solution of Bilateral Disputes).

The positive echo of the previous Berlin 2014 and Vienna 2015 Western Balkans Summits within the framework of the Berlin Process was further strengthened through the Paris Summit on 4 July 2016 organized by France. The Paris Western Balkan Summit enhanced

67 The Western Balkan six Prime Ministers agreed in Brussels in April 2015 and then in Riga in June 2015 on the regional core transport network corridors, with projects to be implemented by 2020 and the appointment of corridor coordinators. Also, they agreed on a list of six transport infrastructure investment projects, including an intermodal terminal, two bridges and three railway projects reflecting core priorities, and necessary maturity for imminent implementation to be proposed for inclusion in the IPA 2015 multi-country program. 68 The Western Balkans agreed on a short list of four investment projects to be proposed for inclusion in the IPA 2015 multi-country program. They include power interconnectors and reinforcement to the region’s electricity transmission system. Additional Projects of Energy Community Interest (PECI), whether electricity or gas, were to be proposed for funding in subsequent years. Also, they decided to establish the regional energy market by establishing power exchanges and the regional balancing market, as well as making the best use of already existing Coordinated Auction Office. For more details: Final Declaration by the Chair of the Vienna Western Balkans Summit on 27 August 2015.

254 cooperation between the countries of the region in the field of youth cooperation and connectivity in the fields of transport and energy. However, although progress was made in various sectoral areas, the EU member states outlined the necessity of intensifying regional cooperation in the Western Balkans through the process of reconciliation as an essential element for promotion of peace and stability and overcoming legacies of the past. According to the participating states, the signed agreement of establishment of the Regional Youth Cooperation Office (RYCO) in Tirana was to provide important contribution to the process of reconciliation within the region by enhancing exchanges and mobility of its youth (Berlin Process, Final Declaration by the Chair of the Paris Western Balkan Summit 2016).

Based on the provided empirical descriptive results, it is more than clear that the EU- driven social learning model has worked without any obstacles in area of active promotion of regional cooperation through its full commitment to regional peace and stability during the negotiation phase. In this sense, following the theoretical logic of appropriateness of the EU rules and norms adoption, the likelihood of the state’s alignment with the SAP conditions has increased substantially during the last integration phase due to the legitimacy of the EU conditions and procedure, identification with the EU identity, and positive normative resonance with domestic rules (Schimmelfennig and Sedelmeier 2005: 18-20).

Reconciliation and climate conducive to addressing open bilateral issues

When it comes to the Union’s demand over the state’s efforts in active promotion of regional cooperation through its full commitment of maintaining regional peace and stability, Montenegro continued to develop good bilateral relations with neighbouring countries and other EU member states. Addressing outstanding bilateral issues between the Western Balkans before its accession into the EU, especially border demarcation problems, remained essential element for Montenegrin advance and completion of the accession process.

Overall, Montenegro continued to develop good neighbourly relations with the Western Balkans during 2012. Bilateral relations with Albania were strengthened through political cooperation and official visit of the President of Albania Bamir Topi to Podgorica in January 2012 and the President of Montenegro Filip Vujanović to Tirana in May 2012. Also, relations between two countries were intensified by signing agreements on cooperation in the areas of defence, joint border-crossing, education, and recovery of Albania’s debt to Montenegro. Bilateral cooperation with Bosnia and Herzegovina was continuously improving on political level through the official visit of the Chairman of BiH Presidency Bakir Izetbegović to

255

Podgorica in October 2012 and the President of Montenegro Filip Vujanović to Sarajevo in September 2012. In addition, further development of relations between the two countries were strengthened in the fields of legal and trade affairs by signing agreements in the areas of legal aid and enforcement of court decisions, mutual protection of classified information, dual citizenship, and international transport. However, although both states demonstrated willingness to improve regional relations by signing border demarcation agreement, there were no further developments in the process of ratification by respective national parliaments (Vlada Crne Gore 2018b; European Commission 2012b: 17; Šesti izvještaj o realizaciji obaveza iz SSP 2012: 4; Sedmi izvještaj o realizaciji obaveza iz SSP 2012: 4; Ministarstvo vanjskih poslova i evropskih integracija, Osmi izvještaj o realizaciji obaveza iz Sporazuma o stabilizaciji i pridruživanju, jul-septembar 2012. godine, 2012: 5, hereinafter referred to as Osmi izvještaj o realizaciji obaveza iz SSP 2012).

Montenegro continued to improve relations also with Croatia. Two states intensified bilateral cooperation on political level through the official visit of the Minister of Foreign Affairs of Croatia Vesna Pusić to Podgorica in June 2012. In addition, development of cooperation was realized by signing agreements on mutual enforcement of court decisions in criminal matters, on scientific-technical, and educational cooperation in the field of the sea, and memorandum on cooperation in the field of health. Both countries showed political will of peaceful settlement of the border dispute over the Prevlaka Peninsula by committing the dispute to the ICJ. However, although the temporary border agreement functioned without obstacles, both sides were being refrained from conducting the procedure of border demarcation by the ICJ. Bilateral relations with FYRoM were overall good and further strengthened on all levels- political, legal, and economic- through the official visit of the President of Montenegro Filip Vujanović to Skopje in March 2012, and signing of agreements on economic cooperation, on the EU accession process, on readmission of persons residing without authorisation, on police cooperation, and similar. Relations with Kosovo were overall good and further intensified by the official visit of the Minister of Foreign Affairs of Kosovo Enver Hoxhaj to Podgorica in January 2012 and entering into force of an agreement on uniform tariffs for border insurance in July 2012. However, a number of open issues between the two states were not tackled, notably the border demarcation issue, constitutional recognition of Montenegrin minority in Kosovo, and return of displaced persons to Kosovo. Bilateral relations with Serbia improved and remained satisfactory. Cooperation between neighbouring countries was strengthened when agreements on cooperation on air traffic control and protocol on cooperation in resolving

256 fate of missing persons were signed. However, although some progress was made in improving cooperation in certain sectoral polices, constant political disputes remained unsolved. In particular, the issues of dual citizenship and border demarcation were still pending, while a dispute between Montenegrin and Serbian Orthodox churches regarding religious assets also remained unsolved (Vlada Crne Gore 2018b; European Commission 2012b: 17; Šesti izvještaj o realizaciji obaveza iz SSP 2012: 5-6; Sedmi izvještaj o realizaciji obaveza iz SSP 2012: 5-6; Osmi izvještaj o realizaciji obaveza iz SSP 2012: 6).

Concerning cooperation with the candidate countries not included in the SAA, bilateral relations with Turkey remained traditionally good. These relations were further intensified on political and economic levels through the official visit of the Prime Minister of Montenegro to Ankara in March 2012 and signing of a number of agreements on protection and promotion of investments, air transport and social security, labour, social security and employment, as well as a memorandum of understanding on education (Šesti izvještaj o realizaciji obaveza iz SSP 2012: 8-9).

By the same token, during 2013, Montenegro overall played a constructive role in developing good bilateral relations with the enlargement countries and other EU Member States. In particular, bilateral relations between Montenegro and neighbouring countries were friendly and they continuously improved. Relations with Albania remained good. Cooperation was developed on political and economic level through the official visit of the Prime Minister Milo Đukanović and the Minister of Foreign Affairs of Montenegro Igor Lukšić to Tirana in March, and offical visit of Prime Minister of Albania Edi Rama to Podgorica in November, as well as by signing agreements on cooperation in the fields of mutual protection of classified information, education and electronic exchange of customs data, and protocol of cooperation between police forces of the two countries during the summer tourist season in June 2013. Bilateral cooperation with Bosnia and Herzegovina was friendly and developing further. This was confirmed by the official visit of the Chairman of BiH Presidency Bakir Vjekoslav Bevanda to Podgorica in February 2013, finalization of the border demarcation agreement, and ratification of the treaty on extradition. Furthermore, Montenegro, Bosnia and Herzegovina, Albania, and Croatia signed a memorandum of understanding on cooperation on the Trans- Adriatic Pipeline and Ionian Adriatic Pipeline projects in May 2013 (Vlada Crne Gore 2018b; Ministarstvo vanjskih poslova i evropskih integracija Crne Gore, Prvi izvještaj o realizaciji obaveza iz Sporazuma o stabilizaciji i pridruživanju januar – jun 2013: 13-14, hereinafter

257 referred to as Prvi izvještaj o realizaciji obaveza iz SSP 2013; Ministarstvo vanjskih poslova i evropskih integracija Crne Gore, Drugi izvještaj o realizaciji obaveza iz Sporazuma o stabilizaciji i pridruživanju septembar 2013 – septembar 2014: 13-14, hereinafter referred to as Drugi izvještaj o realizaciji obaveza iz SSP 2014; European Commission 2013b: 11).

Montenegro continued to strengthen its bilateral relations with FYRoM by intensifying its political relations with this country, which was followed by the official visit of the Minister of Foreign Affairs of Montenegro Igor Lukšić to Skopje in February. Further on, ratification of already signed agreements on cooperation in the fields of legal affairs, police cooperation, and mutual assistance on customs also took place. Cooperation with Kosovo was intensified by already signed agreements on extradition, mutual enforcement of judicial decisions in criminal matters, and on legal assistance in criminal matters. Concerning the border demarcation issue, a joint Montenegro-Kosovo Commission started operating. However, no further developments were seen in recognition of Montenegrin minority in Kosovo. Bilateral relations with Serbia were intensified through the official visit of the President Tomislav Nikolić in January and Minister of Foreign Affairs of Serbia Ivan Mrkić in April, and Minister of Foreign Affairs of Montenegro Igor Lukšić to Belgrade in May. In addition, the agreement on police cooperation between the two countries entered into force, while joint special task force for fighting corruption and crime became operational, thus resulting in common police actions in both states becoming a reality. However, the issues of dual citizenship, border demarcation, and dispute between two Orthodox churches remained unsolved (Vlada Crne Gore 2018b; Prvi izvještaj o realizaciji obaveza iz SSP 2013: 13-14; European Commission 2013b: 11).

When it comes to the Union’s demand over the state’s efforts to improve its bilateral relations with the Member States, notably Croatia and Italy, the candidate country achieved visible results. Relations with Croatia were intensified through the official visit of the Minister of Foreign Affairs Igor Lukšić and the Speaker of Assembly Ranko Krivokapić to Zagreb in February, and adoption of a number of agreements in the field of economy and tourism. The temporary border agreement of joint police control functioned without any obstacles, and it remained a good example for addressing bilateral issues in positive neighbouring spirit. Joint border demarcation commission met in February 2013 in order to solve the Prevlaka issue, and both parties agreed to file the border demarcation issue to the International Court of Justice only in case if bilateral negotiations failed. Montenegro and Italy continued to have friendly relations, with signing agreements on cooperation in the field of environment, on enhancing

258 the application of the European Convention on Extradition and on European Convention on Mutual Assistance in Criminal Matters, and on scientific cooperation in July. Finally, relations with Turkey, a candidate country for the EU membership not included in the SAA, remained traditionally good. Further cooperation was seen in enhanced economic relations and tourism, science, health and readmission agreements, and in a consular protection agreement (Vlada Crne Gore 2018b; Prvi izvještaj o realizaciji obaveza iz SSP 2013: 15-17; European Commission 2013b: 12).

During 2014, Montenegro demonstrated significant efforts in strengthening bilateral relations with all neighbouring countries and the EU member states through reconciliation and climate conducive to addressing open bilateral issues. In that respect, following the EU’s pressure over the state’s efforts to develop good neighbouring relations with the Western Balkan countries, bilateral relations with Albania remained overall good and constantly progressing. Both states signed an agreement on cooperation in the field of tourism, while in July 2014 Montenegro, Albania, and Kosovo signed an agreement on the meeting point of the state border and its maintenance. Montenegro maintained very intensified cooperation with Bosnia and Herzegovina through the official visit of Prime Minister Milo Đukanović to Sarajevo in June 2014, and by signing protocols on exchange of information and evidence on war crimes in April. In addition, Montenegro, Bosnia and Herzegovina, and Serbia signed a protocol on establishment of a joint centre for police cooperation in Trebinje (BIH), which opened officially in March that year. Far more importantly, additional activities over further improvement of good neighbourly relations were being conducted in respective activities towards signing of the border demarcation agreement between Bosnia and Herzegovina and Montenegro in May (Vlada Crne Gore 2018b; Drugi izvještaj o realizaciji obaveza iz SSP 2014: 10-11; European Commission 2014b: 13).

Montenegro and FYRoM did not have open bilateral issues, and therefore, bilateral relations between two countries were characterized as friendly. Both countries signed agreements on sharing diplomatic and consular services, on mutual enforcement of court decisions in criminal matters, on legal aid in civil and criminal matters, and a protocol on cooperation in the area of military training. Montenegro continued to intensify bilateral relations with Kosovo through the official visit of Minister of Foreign Affairs of Montenegro Igor Lukšić to Priština. Both states signed agreements on recognition of pension rights, on police cooperation, on opening of joint border-crossings, and on local border traffic in

259

December that year, as well as protocols on joint border patrols and border cooperation in March and on cooperation in the fight against trafficking in human beings in April. Political relations were also developed through the appointment of the Ambassador of Montenegro, Ferhat Dinoša, to Priština. However, limited developments were achieved over peaceful settlement of open bilateral problems. Although some progress was made in the establishment of the joint border demarcation commission, the issues of border demarcation and improvement of the minority status of Montenegrins in Kosovo remained pending. Montenegro continued to develop bilateral relations with Serbia by intensifying sustainable political, legal, and service cooperation. The Prime Minister of Montenegro Milo Đukanović paid an official visit to Belgrade in December 2014, while further cooperation was made by signing agreements on diplomatic training and on mutual sharing of premises for diplomatic and consular offices in June, and on taking joint activities in arresting prominent organized crime groups. Furthermore, Montenegro, Serbia, FYRoM, and Bosnia and Herzegovina signed an agreement on reducing prices of roaming services on public mobile communication networks in September. However, no developments were detected in reference to the dual citizenship issue, border demarcation disputes, and problems between Serbian and Montenegrin Orthodox churches (Vlada Crne Gore 2018b; Drugi izvještaj o realizaciji obaveza iz SSP 2014: 13-17; European Commission 2014b: 13).

Concerning the improvement of bilateral relations with the EU Member States, Montenegro continued to maintain good neighbourly relations with Croatia by signing a protocol on police cooperation during the summer season and working closely in the field of education and scientific research. The temporary agreement on control of joint police forces on the Prevlaka Peninsula continued to work without any obstacles. No further developments were taken by the two in order to solve the bilateral border demarcation dispute except from an official statement by the two governments that it was more likely to expect that the border demarcation issue would be solved through international arbitration. In addition, Montenegro continued to preserve friendly relations with Italy mainly through intensified economic, trade, education, science, and service cooperation. These two countries ratified two agreements on enhancing application of the European Convention on Extradition and the European Convention on Mutual Assistance in Criminal Matters in December, signed an agreement on cooperation in transport of passengers and freight in international road transport, and signed the protocol for implementation of a readmission agreement between the two countries that was initialled in March. Finally, regarding the Union’s requirement over developing bilateral

260 relations with neighbouring countries not included in the SAA, Montenegro ratified the readmission agreement with Turkey in October (Vlada Crne Gore 2018b; Drugi izvještaj o realizaciji obaveza iz SSP 2014: 12-13; European Commission 2014b: 13).

During 2015, the country continued to play a constructive role in maintaining good neighbourly relations with the enlargement countries and the other EU member states. In line with strengthening good neighbourly relations, Montenegro continued to maintain good bilateral relations with Albania through NATO integration process and by signing and ratifying agreements of economic cooperation in February and April. Certain declining trends in development of bilateral cooperation between the two countries occurred in January when Montenegro officially lodged a diplomatic demarche due to display of the ‘Greater Albania’ flag at the residence of the Prime Minister of Albania Edi Rama. However, shortly after that this flag incident was solved in an official meeting of Montenegrin and Albanian high-ranking officials. Relations with Bosnia-Herzegovina remained friendly and continued to be developed by signing the border demarcation agreement at Vienna Western Balkan Summit in August, with previously ratified agreements on consular protection and visa issues in May (Vlada Crne Gore 2018b; European Commission 2015b: 22).

Montenegro continued to further develop bilateral relations with FYRoM through political, diplomatic, and legal cooperation by signing a protocol housing their diplomatic and consular offices in France in February, and an agreement on mutual recognition of driving licences in September. Also, a joint committee on the EU affairs held several sessions in March. There were no open bilateral disputes between the two. Bilateral relations between Montenegro and Kosovo continued improving following Montenegro’s ratification of the agreement on police cooperation in July and signed border demarcation agreement between Montenegro and Kosovo at Vienna Western Balkans Summit in August. In addition, no additional improvements were observable in reference to constitutional recognition of Montenegrin minority in Kosovo. Montenegro continued to strengthen its relations with Serbia through the official visit of the Speaker of the Parliament of Serbia to Podgorica, Maja Gojković, in October 2014 and having signed a protocol on cooperation on European integration in July. However, there were no developments with reference to the dual citizenship issue, border demarcation problems, and the dispute between the Orthodox churches (Vlada Crne Gore 2018b; European Commission 2015b: 22).

261

Concerning the development of good neighbourly relations with the EU member states, bilateral relations between Montenegro and Croatia remained good. Croatia continued supporting Montenegro’s accession to NATO, while further cooperation was seen in defence cooperation through the signed agreements on military engineering and leadership, in training of Montenegrin cadets in Croatia in 2014, and in education through already signed agreements on study programmes in 2014. Still, the issue of border demarcation on the Prevlaka Peninsula remained unsolved although the joint control of border functioned smoothly. Furthermore, Montenegro continued having friendly relations with Italy, with the signed agreements on cooperation in the field of health and medical sciences in October and memorandum on cooperation in the fight against corruption in July. In addition, Montenegro adopted a decision to open a consulate in Trieste. Last but not least, Montenegro aimed to strengthen bilateral relations with Turkey, with agreements on cooperation on military training in October, and on health and medical sciences in December, whilst the agreements on mutual assistance on customs issues and on social security were ratified during 2015. Also, both countries developed even further economic cooperation through the Joint Commission for Economic Cooperation (Vlada Crne Gore 2018b; European Commission 2015b: 22).

And finally, during 2016 Montenegro remained committed to developing good bilateral relations with neighbouring enlargement countries and other EU member states. Primarily, following the assumed obligation stemming from the SAA, Montenegro adopted a bilateral convention on regional cooperation with Albania, FYRoM, and Serbia under Article 15 of the SAA. The country thus became obliged to conduct the same activities with remaining SAP countries. In line with maintaining good neighbourly relations, cooperation with Albania remained satisfactory. In particular, Montenegro ratified an agreement on economic cooperation in October, while Albania ratified a protocol of Montenegrin accession to NATO in June. There were no open bilateral issues between the two. Montenegro continued to have good bilateral relations with Bosnia-Herzegovina through the signed agreement on cross- border supervision in December. Positive impetus towards developing good neighbourly relations was seen in the joint ratification of agreements on border demarcation in April 2016. Furthermore, both countries demonstrated additional efforts to adopt the convention on regional cooperation under Article 15 of the SAA. No open bilateral disputes exist between these two states (Vlada Crne Gore 2018b; European Commission 2016b: 22).

262

Relations between Montenegro and FYRoM remained friendly. Two countries intensified their relations through economic cooperation, notably through the organized business forum on investment opportunities in FYRoM that was held in Podgorica in October. Bilateral cooperation between Montenegro and Kosovo was being developed through the signed agreement on cooperation between the Commissions for Missing Persons of Montenegro and Kosovo in October and the ratified agreement on police cooperation from September. A positive impetus towards settling out bilateral disputes was observed in Montenegrin ratification of the agreement on border demarcation with Kosovo in December. The same ratifying procedures are waiting to be completed by Kosovo’s parliamentarians. However, although there was a certain progress in solving the border demarcation issue, no further developments were detected regarding the constitutional recognition of the Montenegrin minority in Kosovo. Montenegro continues to have good neighbourly relations with Serbia through the active cooperation in field of defence. Still, there were no developments with reference to the dual citizenship issue, border demarcation problems, and disputes over the right of religious assets in Montenegro between Montenegrin and Serbian Orthodox churches (Vlada Crne Gore 2018b; European Commission 2016b: 22).

Following the obligations stipulated within the SAA, Montenegro continued to maintain good bilateral relations with the EU Member States, namely with Croatia. This EU member state strongly advocated Montenegro’s membership in the Alliance. Further cooperation activities were being intensified through signed memorandum of understanding in sports. In addition, although both countries demonstrated a joint effort in peaceful settling of the border demarcation dispute over the Prevlaka Peninsula, no further actions were conducted by the government towards addressing the outstanding bilateral issue. On the other hand, the joint border control functioned without any obstacles. In addition, cooperation between Montenegro and Italy worked smoothly through the signed agreement on cooperation in veterinary and food safety in May. Finally, bilateral relations between Montenegro and Turkey, a candidate country not included in the SAA, remained friendly. Turkey strongly supported Montenegrin accession to NATO. Further cooperation between the two were intensified through the signed agreement on defence in April, ratified agreement on social security in December, and signed memorandum of understanding in strengthening cooperation on hydropower development between Montenegro, Turkey, and Slovenia in October. In addition, a cooperation agreement between the Chamber of Commerce of Montenegro and the Union of

263

Turkish Business and Chambers of Commerce (TOBB) was signed in September (Vlada Crne Gore 2018b; European Commission 2016b: 22).

Finally, the empirical descriptive analysis has indicated the Union’s driven social learning model based on the logic of appropriateness functioning smoothly in the field of developing good bilateral relations with the enlargement country and the Member States during the negotiation phase. The state’s willingness to fulfil the SAP conditions, including the issue of addressing open bilateral disputes with neighbouring countries has been primarily the result of impact of both facilitating international and domestic factors. In particular, Montenegro has demonstrated openness in aligning itself with the EU standards because it has been persuaded by the Union in: clarity of the EU rules, their degree of acceptance and legitimacy of the rule- making process; in creation of the SAP as unique policy for the Western Balkan region and therefore, establishment of more closer legal and institutional ties; identification with the EU’s identity; and positive domestic resonance with domestic rules (Schimmelfennig and Sedelmeier 2005: 18-20).

5.3.2 Fulfilment of the SAA criteria as essence for the state’s advance in the accession process 5.3.2.1 Pre-negotiation stage

Originally, concerning the Union’s requirement over the state’s active involvement in regional cooperation and maintaining good neighbouring relations, the empirical findings reveal two main observations during the pre-negotiation phase. First, by signing and entering into force of the Stabilization and Association Agreement (SAA), the Union introduced the issues of regional cooperation and development of good bilateral relations as legally binding provision for the potential candidate country as a key condition for further advance in the accession process. Due to civil war consequences on the territory of former Yugoslavia (1991- 1995) and internal political problems that existed in Albania and Former Yugoslav Republic of Macedonia, the Commission in 1999 established an innovative model of relationship with the countries in the region through a process commonly known as the Stabilization and Association Process (SAP). The main aim of the SAP is strengthening regional and bilateral activities in the region for it to primarily achieve stabilization and thereafter association to the EU (Miščević 2009: 151-152).

264

The most important instrument of the SAP is the SAA as the first contractual relationship remaining an essence for establishment of special high-level cooperation between the Union and the potential candidate country (Miščević 2009: 152). Interestingly, the SAA belongs to that type of an accession agreement that was the ‘Europe Agreement’ as signed with countries from Central and Eastern Europe in the ‘90s. Moreover, the SAA can be characterized as a more advanced model of the Europe Agreements (Association Agreements). The content of the SAA, and its legal provisions, goals, institutions, common bodies, mechanisms, and transit period are almost identical with the Europe Agreements. However, due to specifics of the post-Yugoslav space and previous association experiences, the SAA brought certain novelties. Except of the introduction of new chapters related to judiciary and home affairs and higher number of policies of cooperation, main differences between the SAA and Europe Agreements are related to content of the development clause and its defined legal provisions on strengthening regional cooperation and improving bilateral relations with enlargement countries. With the SAA entering into force, the development clause confirms the status of the potential candidate country for the EU membership, but it does not at the same time define any date of actual accession to the Union. Also, legal provisions stipulated within the SAA obliged Montenegro to provide additional efforts in active promotion of regional relations through its full commitment to regional peace and stability, and also in developing bilateral cooperation with neighbouring countries: both the signatory countries of the SAA, the EU Member States, and with other candidate countries (Turkey) not included in the SAA (Đurović 2012: 345; Miščević 2009: 152).

Evidently, the Union provided significant attention to issues of strengthening regional cooperation and maintaining good neighbourly relations within the SAA. Although the SAA contains other principles of development of relations with the EU referring to promotion of democracy and strengthening democratic institutions, rule of law, protection of human and minority rights, and improvement of economic and trade relations, it can be assumed that fulfilment of regional cooperation requirement represents an essence of the contractual agreement especially because of the necessity of institutionalization of this policy. This particularly means that the introduced legal provisions within the SAA aim to achieve accession of the Western Balkans to the Union, while at the same time trying to establish full and permanent stabilization of not only individual states but the region as a whole. Therefore, it might be reasonable to claim that the SAA became one of the most important enlargement frameworks for Montenegro’s advance in the accession process (Đurović 2012: 329).

265

In addition, apart from preserving regional stability, complexity of the Western Balkan region has spawned one more important political problem specific mainly for the post- Yugoslav space – border issues. Out of the question, border demarcation problem as outstanding bilateral issue that exists among former Yugoslav states has had a significant impact on further development of neighbourly relations and on further progress in the process of European Integration of the region. For instance, bilateral border disputes between Slovenia and Croatia from 2009 over determining the level of territorial waters in the Piran Bay (northern part of the Adriatic Sea), consequently influenced Croatia being blocked by Slovenia in the negotiating process for a year. The same bilateral border demarcation issues are observable in the case of Montenegro and its neighbours, namely with Bosnia and Herzegovina, Croatia, Kosovo, and Serbia.

On the domestic level, Montenegro achieved overall visible progress in strengthening regional cooperation and developing bilateral relations with the enlargement countries and other Member States during the pre-negotiation phase. The country had profoundly visible role in contribution to regional peace and stability through its active participation in regional initiatives, notably MARRI, RACVIAC, RCC, thus demonstrating full commitment towards promoting the ideas of cooperation in the fields of free trade, economy, security, defence, migration, and the fight against corruption and organized crime. In addition, Montenegro continued playing constructive roles in other regional organizations through its role of Chairman in CEFTA (2009), CEI (2010), SEECP (2010), AII (2010-2011), and US-Adriatic Charter (2011). In particular, under the chairmanship within the South-East European Cooperation Process (SEECP), Montenegro adopted the Regional Strategic Document and Action Plan on Justice and Home Affairs 2011-2013 in March 2010, thus proving its dedication to building regional stability and solving policy issues. Finally, the enlargement state supported actions of various regional initiatives, namely Igman Initiative and RECOM, by sharing values of necessary reconciliation of regional countries having been affected by post-war consequences.

By the same token, shortly after international recognition, Montenegro started playing a constructive role in improving good bilateral relations with the enlargement states and with other Member States during the pre-negotiation phase. As expected, the state devoted highest attention to developing bilateral cooperation with neighbouring countries being included in the SAA. The country immediately took decisive steps in improving good neighbourly relations

266 with Albania, Bosnia and Herzegovina, Croatia, Kosovo, FYRoM and Serbia by intensifying cooperation in the fields of political, legal, economic, and trade relations. As a result, bilateral relations between Montenegro and Serbia, Bosnia and Herzegovina, and Kosovo were substantially developed through the signed agreements on joint border control, on joint police cooperation in the fight against organized crime, on displaced persons, and on readmission.69 In addition, positive outcomes of strengthening good neighbourly bilateral relations were noticed shortly in construction and establishment of the joint Albanian-Montenegrin cross- border – Sukobin/Murićani in 2009, which remains the first joint border crossing in the region, as well as in signing of the agreement on dual citizenship with FYRoM, respectively the first dual citizenship agreement of its kind in the region. However, the most positive example of resolving outstanding bilateral disputes in the spirit of good neighbourly relations was particularly seen between Montenegro and Croatia over the border demarcation issue on the Prevlaka Peninsula. The two neighbouring countries agreed to peacefully settle the border demarcation dispute though the international arbitration at the International Court of Justice although temporary joint border control has functioned smoothly since 2002.

However, although Montenegro continuously demonstrated proactive approach in developing good neighbourly relations with the Western Balkan countries, certain declining trends were also observable within the given criteria. Evidently, after the dissolution of former Yugoslavia, number of open bilateral disputes between Montenegro and other neighbouring countries remained unsolved, especially in the field of border demarcation. In particular, apart from the case with Albania and FYRoM, Montenegro was faced with substantial bilateral border demarcation problems with other post Yugoslav states – Bosnia and Hercegovina, Croatia, Kosovo, and Serbia during the pre-negotiation phase. Moreover, apart from positive initiatives of Montenegrin and Croatian Governments over peaceful settlement of the border demarcation issue of the Prevlaka Peninsula by committing dispute to the international arbitration at the International Court of Justice, the remaining neighbouring countries did not demonstrate any political will to resolve outstanding bilateral border disputes by using peaceful legal means.

69 Montenegro signed bilateral agreements with Serbia on joint border patrol and joint police cooperation in the fight against organized crime, with Bosnia and Herzegovina on joint border patrol, and with Kosovo on displaced persons and readmission.

267

Table 5. Bilateral disputes between Montenegro and neighbouring countries during the pre- negotiation phase 2007 – 2012

Albania BIH Croatia FYRoM Kosovo Serbia

Montenegro NO YES YES NO YES YES Reasons: - Border dispute; -Border dispute; -Border -Border dispute; dispute; -Issue of dual -Recognition citizenship; of MNE minority;

Source: Author’s own elaboration

Therefore, based on the provided observations, the empirical evidence reveals that Montenegro achieved a visible progress in active promotion of regional cooperation through its full commitment to regional peace and stability and improvement of bilateral relations with other enlargement countries and the Member States during the pre-negotiation phase, as one of the key conditions for the advancement in the accession process. Visibly, the state demonstrated strong commitment in providing additional contribution to the security and stability in the Western Balkans by active participation in regional initiatives, and reconciliation and climate conducive to addressing open bilateral issues and legacies of the past.

Hence, the empirical findings suggest that the Union primarily had reinforcing impact on overall strengthening of Montenegro’s regional cooperation efforts and maintaining good neighbourly relations during the pre-negotiation phase. In particular, the EU external incentives had positive reinforcing effects on empowerment of regional stability and bilateral relations with other enlargement countries and the EU member states, thus demonstrating at the same time positive impetus for further integration reform processes.

The reasons for the state’s alignment with the SAA conditions during the pre- negotiation stage can find a fertile ground within the theoretical argumentation of already Europeanization scholars. Primarily, the EU-driven social learning model (as a social constructivist model) that follows the logic of appropriateness of the EU standards adoption can be applicable to the fields of regional cooperation being strengthened and maintaining good bilateral relations components. By using the logic of appropriateness, externally driven model of social learning presumes the identification of the target candidate country with the Union’s demands by being persuaded of usefulness and legitimacy of the EU rules and norms adoption.

268

Under the strategy, the country’s alignment with the SAA conditions is primarily the result of the legitimacy of the EU conditions and of the EU process through which the Union formulates demands and promotes rules as such, as well as the domestic identification with the EU and domestic rule resonance. In particular, the effectiveness of externally driven process of compliance in the areas of improving regional cooperation and developing good bilateral relations depended on several facilitating international and domestic factors, namely: 1) clarity of the SAP conditions; 2) legitimacy of the Union’s rule-making process; 3) quality of the process of rule transfer: i.e., high perception of “ownership” of the EU (SAP) demands and persuasion of existence of special institutional and legal ties by the target country; 4) domestic identification with the EU identity, values, and norms; 5) and positive normative resonance with domestic rules: i.e., the state’s openness to align with new SAP conditions as a result of the existing political crises in the given region (Schimmelfenning and Sedelmeier 2008: 18-20; Sedelmeier 2011: 15).

As a result, the Union’s pressure over the country’s fulfilment with the regional relations policy demands was perceived by the domestic actors as suitable and appropriate to align with, consequently resulting in achieving credible results in strengthening regional cooperation and developing good neighbourly relations through solving issues of displaced persons, return of missing assets, war reparation, and strong cooperation with the International Criminal Tribunal for the Former Yugoslavia.

Based on the research observation, it would be reasonable to argue that Montenegro continued to play active and constructive role in strengthening its regional cooperation and maintaining good neighbourly relations with the Western Balkans, consequently addressing the SAP conditions during the pre-negotiation phase. Number of bilateral disputes, especially border demarcation problems influenced further improvement of bilateral relations with neighbouring countries, but overall the state demonstrated positive impetus to settle bilateral disputes with other regional countries by peaceful means. Therefore, it might be grounded to claim that the candidate country progressively assumed the obligation from the EU membership, while at the same time creating conditions to move forward in the process of the EU integration.

269

Explaining positive trends in addressing regional cooperation and maintaining bilateral relations requirements during the pre-negotiation phase

Given the provided observations the main question that arises is: How can one explain positive trends over the state’s further strengthening of regional cooperation and improving bilateral relations? More precisely, the chapter seeks to provide answers why Montenegro played constructive role in active promotion of regional cooperation through its full commitment to regional peace and stability, and also in improving bilateral relations with other enlargement countries and the EU member states.

Three main explanations may be provided. First, Montenegro’s membership in the regional initiatives is primarily based on its willingness to participate in organizational activities, and, perhaps far more importantly, functioning of regional initiatives largely depends on financial support of their members and international donors. Although the enlargement country contained relative free will to choose in which regional initiatives it wanted to actively participate, functioning of regional organizations and respective activities mainly depended on the members’ financial contribution and international donors’ support. For instance, following the case of CEFTA, CEI, MARRI, RACVIAC, and RCC, activities of these regional initiatives were largely financed by their member states, the Union itself, and various international contributors. If one takes into account the case of Montenegro’s membership in the Central European Initiative (CEI) for instance, annual financial contribution in the total amount of 3.960 EUR in order to preserve the membership status comes into mind (Vlada Crne Gore 2018a). Apparently, it is the parties’ financial contribution to functioning of regional initiatives that substantially limits the scope of actions of these organizations. In that sense, financial support of the member states creates interdependent relationship between participant and regional initiatives in favour of the member contributors, consequently establishing organization(s) without the possibility of imposing sanction mechanisms if the countries do not comply with the initiative’s requirements or course of actions.

Second, building regional stability was largely achieved through financial support and technical assistance of the EU. The legal provisions stipulated within the SAA clearly emphasized that development of regional cooperation and improving good neighbourly relations was to be supported by the Union assisting programmes funding projects of regional or cross-border dimensions through technical assistance (SAA 2007 Article 14). Therefore, the EU designed special Instruments in the Pre-Accession Assistance (IPA I) for potential and

270 candidate countries for the EU membership in order to strengthen regional relations with neighbouring countries, the Member States, and other countries by using Regional and Cross- Border Cooperation – CBS (II IPA component). The main aim of the CBS is further strengthening of stability, security, and prosperity of the Western Balkans region through active development of relations and cooperation between cross-border regions. In particular, cross- border relations aim to encourage border cooperation between neighbouring states in strengthening economy, efficiency, and security of borders, prevention and the fight against organized crime, promotion of legal and administrative cooperation, and similar (Đurović 2012: 341).

Based on the provided instruments within the pre-accession assistance, Montenegro actively participated in various cross-border cooperation programs under the CBS II IPA component during the pre-negotiation stage: - 4 neighbouring programs70 – Montenegro-Albania; Montenegro-Bosnia and Herzegovina; Montenegro-Croatia; Montenegro-Serbia, and 1 program – Adriatic Cross Border Program (i.e. Adriatic)71 including both regional countries and the Member States; - and 2 transnational programs – South East European Space (SEES)72 and Mediterranean programme (MED).73 Based on available data, under the framework of IPA II, the EU financially supported various projects of regional and cross-border cooperation between Montenegro, other enlargement countries and the Member States in the total amount of 30 million EUR during the period between 2007 and 2013 (Đurović 2012: 343).74

70 Within the IPA I 2007 and 2008, Montenegro conducted overall 35 bilateral projects: 6 projects with Albania; 11 projects with Bosnia and Herzegovina; 5 projects with Croatia; and 13 projects with Serbia. For more details: https://www.eu.me/mn/ipa/ipa-i-2007-2013/ii-komponenta-prekogranicna-saradnja . 71 IPA Adriatic CBC Programme includes Albania, Bosnia and Herzegovina, Croatia, Montenegro, Italy, Slovenia and Serbia cooperating in 4 areas: economic, social and institutional cooperation; preserving national and cultural cooperation, including prevention of risk; availability and networking, and technical cooperation. Montenegro participated in 17 projects. For more details: https://www.eu.me/mn/ipa/ipa-i-2007-2013/ii-komponenta- prekogranicna-saradnja. 72 IPA SEES Programme includes: Albania, Austria, Bosnia and Herzegovina, Bulgaria, Croatia, FYRoM, Greece, Hungary, Italy, Montenegro, Moldavia, Slovakia, Slovenia, Serbia, Romania, Turkey, and Ukraine. Priorities of the programmes were: innovation and development of entrepreneurship, protection and development of environment, development of transnational synergy for sustainable growth of the region. The EU provided Montenegro with 2.300.000 EUR for conducting projects in the period 2007/2009. For more details: Đurović 2012: 492. 73 IPA MED Programme includes Albania, Bosnia and Herzegovina, Britain, Cyprus, Croatia, Greece, France, Italy, Malta, Montenegro, Portugal, Slovenia, and Spain. Priorities of the programmes were: building of innovation capacities, protection of environment and promotion of sustainable territorial development, enhancement of mobility and territorial connections in area of the Mediterranean region. The MED program was supported by the EU with 256 million EUR for the period of 2007/2013. For more details: Đurović 2012: 492. 74 2007: 3.9 million EUR; 2008: 4.5 million EUR; 2009: 4.7 million EUR; 2010: 4.8 million EUR; 2011: 4.3 million EUR; 2012: 4.3 million EUR; 2013: 4.4 million EUR. Ibid. 2012: 343.

271

Finally, the most convincing reason for positive trends in the fulfilment of the SAP conditions lies primarily in the state’s willingness to effectively align itself with the EU requirements. Evidently, Montenegro was persuaded by the EU over usefulness and legitimacy of the EU demands and processes in the area of strengthening regional cooperation and improving good neighbourly relations (Sedelmeier 2011: 15; Schimmelfennig and Sedelmeier 2005: 18-20). In other words, usefulness of tackling regional cooperation criteria by the country did not call into question long-lasting political power of the ruling elites, as well as its widespread political influence on all levels of governance and in legislative and judicial branches. In particular, the state’s fulfilment of the SAA conditions during the pre-negotiation phase did not interfere with the basic principles of established political structure in the country, nor did it jeopardize survival of the domestic political elites as it was the case with the previously shown empirical chapter regarding issues of politicization of judiciary and political corruption. Rather, smooth fulfilment of the SAP conditions was beneficial for the domestic political elites because it substantially strengthened their political positions both at the regional and the EU level.

Obviously, the constructive role of Montenegro’s political elites in improving bilateral relations with other Western Balkan countries produced a double effect. Primarily, Montenegro positioned itself as positive example of maintaining good neighbourly relations at the regional level (which was not the case with other countries in the region), although the state had numerous open bilateral disputes with other post-Yugoslav states, especially in border demarcation issues. Good neighbourly relations role played by Montenegro created conditions for Podgorica positioning itself as a kind of special peace mediator between the Western Balkan countries burdened by post war-related problems (BIH-Croatia-Serbia; BIH-Serbia; Croatia- Serbia; Kosovo-Serbia), and therefore, benefiting from the EU accession process. Moreover, Montenegro’s decisions: 1) to declare independence from Serbia in 2006 (which is mainly perceived by other neighbouring countries as a trouble-maker state); 2) to apologize for the aggression on the city of Dubrovnik and Bosnia and Herzegovina during the ‘90’s and to pay war reparation to Croatia (2010) and BIH (2008);75 3) and finally, to recognize independence of neighbouring Kosovo in 2008 undoubtedly influenced reduction of regional pressure in ethnic tensions and national intolerance. As result, by leaving inherited post-war problems to

75 Since 2010 Montenegro started paying war reparations to citizens of Dubrovnik. Also, the Government in 2008 signed a court settlement with Bošniak families deported and killed in 1992. Victims and their relatives, 247 individuals in total, received the amount of 5 million dollars for compensation.

272

Serbia, the country immediately started playing an active role in promotion of regional cooperation through its full commitment to regional peace, stability and developing good neighbouring relations. Moreover, this foreign policy decision quickly received strong support for the country’s European and Euro-Atlantic ambitions not just from the rest of the Western Balkans region, but also from the EU itself. Consequently, the Union obtained in Montenegro a reliable factor of regional stability supporting European Integration, with Podgorica becoming an example of a role model to generally problematic Western Balkan countries.

5.3.2.2 Negotiation phase

In a nutshell, the empirical data over Montenegro’s efforts to build regional stability during the negotiation phase reveals two main observations. First, on the EU level, the Union has demonstrated more pro-active approach in promoting regional cooperation and strengthening good bilateral relations especially among the neighbouring countries. Primarily, the Union has been committed to improving regional relations among the Western Balkans through its active promotion of regional cooperation in the fields of transport and infrastructure, economic connectivity, youth cooperation, and cooperation among businesses and civil societies of the Western Balkan states. Initiation of Berlin (2014), Vienna (2015), and Paris Western Balkan Summits (2016) under the framework of the ‘Berlin Process’ has substantially contributed to strengthening of regional connectivity agenda by connecting people, economies, and states of the region. Positive outcome of the summit gatherings has been particularly observable within regional development of economic and social dimensions by agreements to cooperate in: energy efficiency target, three Trans-European Transport Networks core corridors, and establishing youth cooperation office in Tirana. Moreover, strengthening regional economic and social dimensions have substantially affected the political dimension in regional relations, namely resolving outstanding bilateral issues: i.e., goal of the Process that was outlined by the then Chair, German Chancellor Angela Merkel, in the Final Declaration from 2014. As a result, on the margins of the Vienna Western Balkans Summit from 2015, Montenegro and Bosnia and Herzegovina and Montenegro and Kosovo signed border demarcation agreements, respectively the first legal agreements among the post-Yugoslav states aiming to resolve open bilateral disputes.

273

Second, speaking of the domestic level, Montenegro has in overall achieved significant progress in active promotion of regional cooperation through its full commitment to regional peace and stability, and also in developing good neighbourly relations during the negotiation phase. More precisely, the candidate country has actively participated in regional initiatives, notably CEFTA, CEI, MARRI, RACVIAC, SEECP, AII, RCC, US-Adriatic Charter, Igman and RECOM Initiatives. In addition, positive incentives towards strengthening regional cooperation and improving good neighbourly relations was particularly observable in Montenegro’s commitment to establishing the regional initiative called the ‘Western Balkans SIX’: high-level political dialogue between regional leaders aiming to aid potential and candidate states in their advancement in the EU accession process. Beyond any doubt, the Western Balkan SIX remains one of the rare examples of a regional organization dedicated to the EU integration process and, perhaps far more importantly, initiated by one of the non-EU member states. Moreover, Montenegro’s opportunistic steps towards institutionalization of relations in the Western Balkans, particularly so in the establishment of joint parliament, police and regional centre for the fight against corruption and organized crime, and common labour market, education and health care may be interpreted as an indispensable regional will to overcome the war legacies of the 1990s, and therefore, to find a common ground of cooperation in the fields of rule of law, economy and trade as being the key criteria for moving forward in the EU integration process.

On the other hand, the empirical data also indicate Montenegro’s serious commitment to the process of reconciliation in the post-Yugoslav space by creating a climate conducive to tackling open bilateral issues. Respectively, the candidate county has continued playing a constructive role in development of good neighbourly relations during the negotiation phase by intensifying cooperation in the areas of political, economic, trade, security, defence, justice and the EU affairs. In particular, bilateral relations between Montenegro and Bosnia and Herzegovina, FYRoM, and Serbia have been improved in the fields of police cooperation, fight against corruption, organized crime, terrorism, and drug trafficking. Also, cooperation between Montenegro and Kosovo has been strengthened through mutual enforcement of court decisions in civil and criminal matters and extradition, whereas relations with Albania have shown improvements in the areas of defence, border crossing, education, and mutual protection of classified information. In addition, Montenegro has demonstrated visible progress in enhancing bilateral cooperation with the countries not included in the SAA, or with other EU Member States. As the result, the country has improved its bilateral relations with Turkey through

274 constructive cooperation in the fields of protection and promotion of investments, economy, trade, and social security, while at the same time relations with Croatia and Italy have continuously advanced in the areas of police cooperation and justice, economy, tourism, education, technical cooperation, and mutual assistance.

Moreover, positive trends in developing good neighbourly relations have been particularly observable in Montenegro’s true commitment to the peaceful settlement of outstanding bilateral disputes, especially border demarcation issues between the post-Yugoslav countries. In this respect, Montenegro and Bosnia and Herzegovina and Kosovo signed border demarcation agreements on the margins of the Vienna Western Balkans Summit in 2015, which resulted in joint ratification of Montenegro-BiH demarcation agreements in December 2015 and April 2016 (first of its kind between the former Yugoslav states), and unilateral Montenegro’s ratification of demarcation agreement with Kosovo in December 2015.76 Furthermore, positive impetus towards the peaceful settlement of open bilateral problems, including border demarcation dispute over the Prevlaka Peninsula was particularly observable between Montenegro and Croatia (non and EU member state), who have agreed to commit the dispute to the International Court of Justice if bilateral negotiations fail. Simultaneously, the temporary border regime on joint police control has since 2002 functioned without any obstacles, and it still remains the most profound example of maintaining good neighbourly relations in the region.

However, certain bilateral disputes have not been solved during the negotiation phase despite the Union’s statement that no candidate country can join the EU unless it previously addresses border demarcation problems and legacies of the past. In line with the EU’s demands as highlighted within the Berlin Process, outstanding bilateral problems between Montenegro and Serbia in the areas of border demarcation, recognition of dual citizenship, and the right to use religious assets in Montenegro (Serbian and Montenegrin Orthodox Churches’ issue) have not been tackled yet. In addition, open bilateral disputes that exist between Montenegro and Kosovo, especially when it comes to the constitutional recognition of the Montenegrin minority has been constantly postponed.

76 Less than three years after the agreement was signed, the Parliament of Kosovo ratified the border demarcation agreement on 21 March 2018. Reasons for stagnation over ratification of the agreement were the lack of 2/3 of the majority in the parliament to vote for this proposal and strong opposition of right-wing Kosovo’s nationalist political party Vetëvendosje (Self-determination).

275

Table 6. Bilateral disputes between Montenegro and neighbouring countries during the negotiation phase – 2012 – 2017

Albania BIH Croatia FYRoM Kosovo Serbia

Montenegro NO NO YES NO NO YES Reasons: -Border dispute; -Border dispute; -Border dispute; -Border dispute; -Recognition of -Dual citizenship; MNE minority; -Religious assets between Orthodox Churches; Year of resolution: 2015 ? 2018 ?

Source: author’s own elaboration

Hence, following the above provided discussion, the empirical evidence indicates that Montenegro has demonstrated progress in strengthening regional cooperation through its full commitment to active participation in regional initiatives, and maintaining good neighbourly relations with neighbouring countries and the EU member states during the negotiation phase, that is towards one of the most essential criteria for moving forward in the European integration process. Consequently, the empirical evidence suggests that the EU has imposed positively reinforcing effects on empowerment of the country’s contribution to peace and stability in the region by its active participation in various regional initiatives, and reconciliation and climate conducive to addressing open bilateral issues.

The overall state compliance with the SAP conditions during the negotiation phase may find a suitable ground within various theoretical discussions of the Europeanization studies. Originally, the externally social learning model that follows the logic of appropriateness for addressing the SAP conditions can be applied to the areas of development of regional stability and improving good bilateral relations. In that respect, following the logic of appropriateness, the target accession country has aligned itself with the EU requirements in the area of building regional stability due to existence of certain sets of international and domestic facilitating factors, notably the legitimacy of the EU rules and process, the EU identity, and domestic rule resonance.

Obviously, Montenegro has continuously fulfilled the political criteria during the negotiation phase because the legitimacy of the SAP conditions and procedures increased in the meantime. This particularly means that legitimacy increases with the clarity of the

276 conditions given. As it was the case with the external incentives model, determinacy of conditions within the given issue area, as well as the legitimacy of the decision-making process, remains an important factor for the EU standards adoption. In addition, creation of the specific policy as the SAP is for the region and awareness of existence of special regional institutional and legal ties with the EU through the SAA has substantially increased legitimacy of the EU rules and procedures, and therefore the likelihood of their adoption by the candidate country. Furthermore, the state’s identification with the EU’s identity, values, and norms has remained one of the most important domestic facilitating factors in fulfilling the SAP conditions. According to the social learning model, the likelihood of rule adoption increases with identification of the candidate country with the EU that has established the rules of the ‘game.’ And finally, there has been a positive normative resonance with domestic rules during the negotiation phase. In particular, the country has demonstrated openness towards providing further efforts in active promotion of regional cooperation through its full commitment to regional peace and stability, as well as to development of good neighbourly relations as a result of crises in the Western Balkans emerging after the end of the conflicts in the region in the 1990s (Schimmelfenning and Sedelmeier 2008: 18-20; Sedelmeier 2011: 15). As the result, the country’s full commitment to preserving regional peace and stability and maintaining good neighbourly relations during the negotiation phase has been reflected in addressing outstanding bilateral disputes with Bosnia and Herzegovina and Kosovo by signing several border demarcation agreements being unequivocally one of the most important political conditions for successful completion of the accession process.

Therefore, based on the provided empirical evidence it would be grounded to claim that Montenegro has purposefully addressed the issue of strengthening regional cooperation though its active participation in regional organizations and improved bilateral relations especially with the neighbouring states. Evidently, although there are certain number of bilateral disputes preventing good bilateral relations in the region, the country has in general played a constructive role in peaceful settling of outstanding bilateral issues, especially border demarcation problems. As a result, Montenegro as a candidate country has achieved considerable results in fulfilling the EU conditions related to the key criteria in completion of the accession negotiation process.

277

Explaining positive trends in addressing regional cooperation and maintaining good neighbourly relation during the negotiation phase

The negotiation stage also provides an answer to the question: how can one explain Montenegro’s positive trends in strengthening regional cooperation and developing good bilateral relations? More precisely, what kind of external and domestic factors have influenced the state’s contribution to the regional peace and stability by maintaining good bilateral cooperation with the neighbouring countries through peaceful settlement of outstanding bilateral issues and legacies of the past?

For this purpose, this chapter provides three main explanations. First, the EU has defined the IPA II as a mechanism of financial support and technical assistance for potential and candidate country for the EU membership aiming to strengthen various state components including Regional and Cross-Border Cooperation – CBS (II IPA component). Following the provided instruments for the pre-accession assistance, Montenegro has actively participated in various cross-border cooperation programs under the CBS II IPA component during the negotiation stage: - 6 neighbouring programs – 5 programs with neighbouring states77 (Montenegro- Albania; Montenegro-BIH; Montenegro-Croatia; Montenegro-Kosovo; Montenegro-Serbia) and 1 program – Adriatic Cross Border Program (i.e. Adriatic) including both the regional countries and the Member States; - and 2 transnational programs – South East European Space (SEES) and Mediterranean programme (MED) (Đurović 2012: 493).

More pro-active approach in the process regional cooperation being strengthened and good neighbourly relations being developed is the second explanation for positive trends in the given area. As it has already been mentioned, full commitment to building regional stability and perhaps far more importantly, peaceful settlement of outstanding bilateral disputes, especially border demarcation problems between the former Yugoslav states, remain as one of the most important SAP conditions for the state’s further advance in the accession process. After surviving the economic and financial crisis, the Union itself has devoted more attention to strengthening of regional relations in the Western Balkans by encouraging these countries

77 Montenegro has conducted overall 36 bilateral projects: 6 projects with Albania in total of 556.000 EUR; 12 projects with Bosnia and Herzegovina in total of 1.14 million EUR; 5 projects with Croatia in total of 899.020 EUR; 13 projects with Serbia in total of 995.409 EUR, and 18 projects with Kosovo in total of 3,081.912 million EUR. For more details: Đurović 2012: 493; https://www.eu.me/mn/ipa/ipa-i-2007-2013/ii-komponenta- prekogranicna-saradnja

278 to strongly cooperate in the areas of economy, infrastructure, energy, transport, youth cooperation, education, and science. Correspondingly, the Berlin Process initiated by the German Chancellor Angela Merkel in 2014, supported by the European Commission, the EU member states – Austria, Croatia, France, Germany, Italy, Slovenia and the United Kingdom, and various international donors, aimed to reaffirm the connection of societies (social dimension) and economies (economic dimension) of the region by providing suitable conditions for further improvement of regional relations (political dimension). In particular, development of social and economic connectivity dimensions should somehow serve as the initial mechanism to peacefully settle outstanding bilateral disputes, particularly so border demarcation issues. As a result, effects of the Western Balkans Summits in Berlin (2014), Vienna (2015), and Paris (2016) under the framework of the Berlin Process have been reflected in the border demarcation agreements being signed between Montenegro and Bosnia and Herzegovina and Montenegro and Kosovo on the margins of the Vienna Summit in 2015. Peaceful settlement of border demarcation between the neighbouring countries has been highlighted by the Union as a major condition to be addressed before full membership of the candidate states in the EU. Thus, following the Union’s claim that the candidate countries shall not be able to import existing bilateral issues into the EU, Montenegro’s intention to resolve its border demarcation problems with the former Yugoslav states remains a positive example of solving this problem before the country is to assume obligations of the EU membership.

Finally, existence of political will of domestic ruling elites to comply with the SAP conditions during the negotiation phase remains the last explanation. Empirically speaking, apart from the state’s constructive role in regional cooperation through its active participation in various regional initiatives, the country has demonstrated its full commitment towards constant development of good neighbourly relations. If one makes a comparison of the state’s results in solving open bilateral disputes with the neighbouring countries between the two integration phases, it becomes more than clear that Montenegro has achieved substantial progress in addressing this issue by having signed the border demarcation agreements with Bosnia and Herzegovina and Kosovo during the negotiation stage. Evidently, the state’s progress in improving good bilateral relations is primarily the result of willingness of Montenegrin political elites to effectively tackle the SAA political conditions.

Moreover, it might be reasonable to claim that political willingness of regional ruling elites to resolve outstanding bilateral disputes by peaceful means has directly affected the

279 overall process of reconciliation between the societies and nations of the region. The study of Montenegro after declaring its independence from Serbia may be used as an appropriate case to confirm this claim. In particular, since 2006 the country has indicated continuous tendency of improvement of its bilateral cooperation with Albania, Bosna and Herzegovina, Croatia, and Kosovo on the one hand, while at the same time maintaining moderately good neighbourly relations with Serbia. It can be assumed that Montenegro’s ruling elites’ decisions: 1) to apologise for war aggressions against Croatia and Bosnia and Herzegovina during the ‘90s; 2) to pay war reparations to Croatian citizens;78 3) to find a pro-active approach in resolving the issue of missing persons and stolen assets from both countries; 4) and, to recognize Kosovo as an independent state have consequently affected positive process of reconciliation in the region, at the same time creating conditions for reducing inter-ethnic and national tensions in the region. On the other hand, after the dissolution of the State Union in 2006, bilateral relations between Montenegro and Serbia have not been further developed due to unwillingness of both political elites to resolve the issues of: border demarcation, dual citizenship, and Montenegrin and Serbian Orthodox Churches over respective religious assets in Montenegro. As a result, the lack of political will of both parties to create an institutionalized mechanism for resolving open bilateral disputes has consequently influenced declining trends in relations between Montenegrin and Serbian nations, and therefore, accepting the political reality of Montenegrin independence and its preserved national identity.

5.3.3. Conclusion

Overall, Montenegro has achieved visible progress in strengthening regional cooperation and maintaining good bilateral relations with the enlargement countries and the EU member states during the whole accession process. In particular, the candidate country has demonstrated substantial efforts in promotion of regional cooperation through its active participation in regional initiatives, such as CEFTA, CEI, MARRI, RACVIAC, AII, SEECP, RCC, US-Adriatic Charter, RECOM, and Igman Initiative. Also, the state has been fully committed to developing good neighbourly relations with the rest of the region by playing a constructive role in reconciliation and climate conducive to addressing open bilateral issues and legacies of the past.

78 In the case of “Morinj,” 250 former prisoners from Croatia demanded compensation for almost a million euro. Please check: https://www.vecernji.hr/vijesti/crna-gora-odsteta-morinj-1209491

280

Based on the state’s visible progress in developing regional cooperation and improving bilateral relations with the Western Balkans, this chapter has identified three main reasons why Montenegro has indeed demonstrated its willingness to functionally induce EU rules and norms. First, there is a lack of influence of domestic veto players over the issues related to building regional stability due to inexistence of domestic conditions jeopardizing their private interests. It might be grounded to assume that the fulfilment of the SAP conditions over the country’s participation within regional initiatives and tackling open bilateral disputes have not produced welfare and power costs for public and private actors. In particular, content of the legal provisions stipulated within the SAA is more oriented towards development of regional relations among the enlargement countries and the EU Member States and establishment of stronger economic and trade contractual bonds between the Union and contracting parties, therefore not calling into question existence of veto-players. Hence, change of the current status quo in improving regional policies does not limit widespread influence of veto players, nor it increases their opportunity costs, welfare, and power losses from compliance (Schimmelfennig and Sedelmeier 2005: 16-17; Cebelis 2016: 20).

In addition, active participation of facilitating factors, notably regional CSOs, in promotion of reconciliation has played indubitably a constructive role in strengthening regional cooperation and developing good neighbourly relations in the region. In particular, several regional non-governmental organizations, notably RECOM and Igman Initiative, have provided substantial contribution to maintaining peace and stability in the region through their full commitment to regional reconciliation in the countries affected by the post-war transition.79 Those regional NGO’s as an EU domestic allies have devoted substantial efforts in strengthening the process of transitional justice within the post-Yugoslav space by connecting high-level regional political representatives in order to overcome this issue, and in facing various national and ethnic individuals and groups towards the process of reconciliation and solving post-conflict traumatic experiences

Second, the domestic ruling elites have demonstrated visible political will to align with the EU requirements. Given the fact that strengthening of the regional cooperation and improving bilateral relations with the neighbouring countries do not call into question political survival of the ruling elites, it might be grounded to assume that fulfilment of the SAP conditions has been rather beneficial for the domestic actors. Apparently, it is Montenegro’s

79 Bosnia and Herzegovina, Croatia, Montenegro, Kosovo, Serbia.

281 commitment to development of good neighbourly relations through the initiation of the Western Balkans SIX initiative and active participation in peaceful settlement of open bilateral disputes between the post-Yugoslav states that has had a substantial effect on strengthening the position of the domestic ruling elites as the factor of stability in the region. Consequently, by using current political particularities of the region, Montenegro’s political elites have presented themselves as indispensable actors of regional changes both on the regional and the EU level requiring the Union’s support in order to solve regional political problems.

Third, one can witness a more active role of the Union and its Member states in the process of promotion of regional cooperation through development of good bilateral relations. The Western Balkans Summits under the framework of the Berlin Process has substantially contributed to strengthening of regional relations by establishing a clear road map of development in the areas of infrastructure, energy, transport, youth cooperation, education, and science. Moreover, the establishment of this multilateral cooperation has provided a double effect. Originally, by supporting and strengthening the regional political, economic, and trade cooperation, the Union has primarily sought to strengthen its relations with the Western Balkans by positioning itself as a reliable economic and trade partner and active promoter of the European Integration process. On the other hand, joint regional dedication to the EU accession process has created conditions for development of political relations in the region and, therefore, consequently solving more sensitive and complex open bilateral issues, namely border demarcation, recognition of minority rights, displaced and missing persons, return of assets, recognition of Kosovo, and similar.

Nevertheless, based on the provided discussion, this chapter has argued that the EU has managed to Europeanize Montenegro in building regional stability through its active participation in regional initiatives and reconciliation and climate conducive to addressing open bilateral issues during the whole integration phase. Therefore, it might be grounded to claim that the Union has introduced positively reinforcing effects in empowerment of the state’s efforts in strengthening regional cooperation and improving good neighbourly relations. The positive reinforcing impact is primarily product of co-relation between the Union and favourable domestic conditions.

This research has proposed the main argument that strengthening regional cooperation and developing good neighbourly relations remains an inter-dependent process depending on various factors, namely effectiveness of the EU external incentives and willingness of the

282 domestic ruling elites to comply with the SAP conditions. Given the fact that fulfilment of the regional cooperation criteria does not require the state’s adoption of the EU acquis, the state’s active participation in the regional initiatives, as well as peaceful settlement of outstanding bilateral disputes, only depends on the Union’s external pressure and willingness of the political elites to address those requirements.

Although Montenegro has continued to fulfil requirements over contribution to peace and stability in the region by active participation in regional initiatives, certain sets of changes need to be introduced at both domestic and regional levels in order to address open bilateral disputes with the neighbouring countries. By fully tackling the SAP conditions, the country should be able to remove one of the major stumbling blocks in completing the accession process. Therefore, Montenegro needs to: - peacefully settle border demarcation disputes with Croatia over the Prevlaka Peninsula by committing open bilateral dispute to international arbitration at the International Court of Justice; - show more efforts in addressing open bilateral disputes with Serbia, including border demarcation, dual citizenship, and problems between Serbian and Montenegrin Orthodox Churches over respective religious assets in Montenegro.

In line with the given empirical elaborations, the question that is being raised is whether interdependency of both external and internal factors is sufficient for obtaining complete insights into why the Union has succeeded in Europeanizing Montenegro in the fields of strengthening regional cooperation and developing good bilateral relations. This particular issue shall be addressed in the conclusion of this thesis.

283

6. Discussion on mechanisms of Europeanization presented in the case study of Montenegro

This research confirms that Brussels has failed to Europeanize Montenegro, particularly so in the areas of judiciary reform and the fight against corruption in the process of the European integration so far. Respectively, this study is based on the argument of the EU transformative power in judiciary reform and combating corruption as having produced negative reinforcing effects or introduced no impact on effective judicial and anti-corruption transformation in Montenegro, which significantly differs from outcomes of other Europeanization scholars. Therefore, this thesis argues that the current EU enlargement policy more likely contains the features of charade in the process of European integration of Montenegro, but also in whole Western Balkan region.

Rather, based on the results of reform of judicial sector and combating corruption, this study has argued that the Union has had visibly negatively reinforcing influence on strengthening Montenegrin judiciary system and anti-corruption policy framework, which is a product of co-relation between the Union and unfavourable domestic conditions. More precisely, although the active role of the Union-driven rule of law promotion cannot be ignored, this chapter has also highlighted that quality of judicial reform and anti-corruption processes largely depends on co-relation between domestic conditions and modes of conducting reforms in the given area (Mendelski 2015). Thus, it is possible to argue that the Union has induced negatively reinforcing effects in judiciary reform and the fight against corruption in Montenegro, especially in strengthening judicial independence and accountability, and also in prevention of corruption and achieving credible track record in investigation, prosecution, and final conviction of high-level cases, consequently resulting in creating an impression of illusion of domestic changes. The claim of absence of the Union’s transformative power regarding judiciary reform and the fight against corruption in Montenegro represents novelty within the Europeanization literature, and additionally it significantly differs from previous research outcomes within the same field (Börzel and Risse 2012; Börzel 2011; Elbasani 2013; Sedelmeier 2011; Frayburg and Richter 2010; Keil 2013; Noutcheva 2009; Noutcheva and Aydin-Düzgit 2012).

Evidently, the EU has, as mentioned in previous empirical chapters, achieved positive reinforcing effects on improving regional cooperation and maintaining good bilateral relations, and negative reinforcing effects on strengthening judicial system and anti-corruption policy during Montenegrin integration phase from 2007 to 2017. The given deficiency of judicial

284 reforms and combating corruption in Montenegro is, on the one hand, primarily the result of inconsistent and inefficient EU conditional policy, and unfavourable domestic factors to appropriately conducted reform activities on the other hand, thus resulting in overall weak and mitigating reform progress. In particular, insufficiently active role of the EU in imposing judicial and anti-corruption criteria over independence and accountability, and prevention and repression of corruption and additionally lack of political will to reduce political influence over judiciary and in anti-corruption bodies have subsequently resulted in adoption of a selective approach by the domestic elites fulfilling those conditions/dimensions, such as regional cooperation and improving good bilateral relations, not probing their political control over Montenegrin judicial sector and anti-corruption supervisory institutions.

Thus, if one acknowledges that judicial independence and accountability and prevention and suppression corruption measures are more important dimensions than contribution to peace and stability in the region by active participation in the regional initiatives and climate conducive to addressing open bilateral disputes of the political accession criteria, then one may claim that the process of judicial reform and the fight against corruption in Montenegro during the integration phase has failed to achieve positive reinforcing effects in the given transformation process. This assertion is based on a view that addressing judicial reform and fight against corruption criteria is a very complex process in being extremely demanding and requiring full state commitment over its comprehensive reform, rather than simply being a mere alignment with the SAP conditions whose fulfilment requires active participation in regional initiatives and maintaining good neighbourly relations. As a result, the Union has empowered negative (deficient) reinforcing effects favouring domestic factors/conditions, thus systematically undermining the process of impartiality and accountability of judges and prosecutors and independence of law enforcement anti-corruption bodies.

Following the EU’s insufficient conditional policy approach, it might be grounded to elaborate current trends in Montenegrin accession process. In this respect, although the EU has outlined visible inconsistencies regarding constant conditional pressure, one may witness Montenegro continuing to move forward in the EU integration process but showing political unwillingness to reduce politicization of judiciary, political corruption, and to achieve concrete and sustainable results in prosecution and final conviction of high-level cases. Consequently, the state’s judiciary system and anti-corruption institutional framework are still under political influence although more than 10 years have passed since the beginning of the accession

285 process. In addition, the EU-driven rule of law reform promotion has applied the strategy of permissiveness in judiciary reform and the fight against corruption during the whole integration phase by at the same time allowing the candidate country to select and tackle certain political criteria based on which it can advance in the given integration process. In particular, a candidate state may recourse to a selective approach of fulfilment of regional cooperation conditions by addressing easier political demands rather than harder ones. Therefore, one might observe the tendency of a state tackling simpler regional cooperation requirements, namely active participation in regional initiatives and addressing open bilateral issues, instead of more demanding once, such as judiciary reform and combating corruption, independence and impartiality of judges and prosecutors and law enforcement authorities. This in essence means tackling those regional cooperation dimensions not questioning the issue of political influence over judiciary and anti-corruption bodies rather than those doing so. In situations in which a state needs to reduce the political influence into judiciary and provide concrete and sustainable results in the area of prosecution and final conviction of high-level corruption, a candidate state rather chooses to hide behind relatively solid results achieved in improving its regional cooperation and bilateral relations, therefore addressing politicization dimensions only in superficial terms. As a result, the state logic of calculations in avoiding empowerment of judges and prosecutors’ and anti-corruption law enforcement bodies can reach that level where further advancement in the accession process without measurable results seems highly probable.

Hence, the EU policy of permissiveness, or rather the lack of interest for guiding the reform process in Montenegro by positioning itself only as the main monitoring agent, without any doubt opens the question of actual range of reform results achieved in the EU integration process, and further problematizes possibility of Montenegro effectively aligning with the EU policies and implementing the acquis. Consequently, the EU’s reluctance in supervising the rule of law requirements as a key condition for the EU membership calls into question the Union’s commitment to seeing socio-political transformation of the country in question, and, perhaps far more importantly, it opens the space for a legitimate debate on whether the EU is ready for new enlargement taking place. In addition, inconsistent fulfilment of judicial reform and combating corruption conditions by Montenegro on the one hand, and noticeable permissiveness or the lack of interest of the EU on the other, invites deliberations on effectiveness of Europeanization of Montenegro and its true ability to assume obligations of the EU membership towards the end of the accession negotiation process.

286

There is no doubt that the obtained empirical findings based on the existence of interdependent relations of the EU and domestic factors has it stronghold in the applied theoretical concept. Unequivocally, the Europeanization process of Montenegro has remained the EU-driven process during the whole integration process. However, the conditions under which the candidate country tries to align with the EU acquis and uses different logics of rule adoption mainly depends on given policy areas. In this respect, following the logic of Europeanization through externally driven compliance by conditionality, the state has not adopted the EU rules and norms in the areas of judiciary reform and combating corruption mostly because the benefits of given EU rewards do not exceed domestic adoption costs. Rather, Montenegro’s decision not to comply with the EU’s demands has primarily been the result of domestic cost-benefit calculations and influence of number of external and internal factors, namely: 1) the lack of credible membership perspective along with the Union’s reluctance to provide any commitment towards a precise timetable for the accession; 2) damaged credibility of the EU conditional policy by subordinating it to other geo-political and geo-strategic aspects and international relations perspectives perceived by Montenegro as a politically motivated decision and a clear signal for advancement in the accession process without addressing membership conditions; 3) strong role of various domestic individual and collective veto players in maintaining the status quo over implementation and enforcement of legal and institutional changes due to high domestic rule adoption costs (Schimmelfennig and Sedelmeier 2005: 8-18; Sedelmeier 2011: 15; Cebelis 2016: 20).

By the same token, the clear mechanisms of the Union’s explanatory social driven learning model in inducing rules and norms has worked appropriately both at the EU and the domestic level in the field of development of regional cooperation and maintaining good bilateral relations. Under the strategy, Montenegro has aligned with the EU conditions over strengthening regional cooperation because it has been persuaded: 1) by the appropriateness and legitimacy of the EU rules and procedures: i.e., the rules being clearly determined and resulting from a legitimate rule-making process in terms of being perceived by the target country as the Union’s creation and ownership; 2) by the state’s identification with the EU values and norms; 3) and by the positive normative resonance with domestic rules: i.e., the state’s openness to fulfil the SAP conditions as a result of a long lasting political crisis in the region (Schimmelfenning and Sedelmeier 2008: 18-20; Sedelmeier 2011: 15).

As it can be inferred, the theoretical perspectives within the Europeanization literature reveal that the EU impact on domestic changes have depended primarily on compatibility of

287 the EU externally driven compliance by conditionality or persuasion and domestic response through the norms socialization. In other words, given Schimmelfennig and Sedelmeier’s theoretical perspective on the Union’s influence on domestic changes in Montenegro, the interplay of domestic and external factors in judiciary reform and the fight against corruption has resulted in effects of politicization of judiciary and of law enforcement anti-corruption authorities, Brussel’s inconsistency, and low quality of legal and institutional changes induced. Therefore, one may conclude that the EU-driven rule of law reform has produced deficient effects in the reform of judiciary and combating corruption, having consequently affected strengthening of the domestic political elites and their positions by helping to introduce an ineffective legal and institutional framework.

Applicability of the theoretical framework to the Western Balkans complexity and influence of international factors

Although this theoretical concept has largely explained the process of the EU standards adoption, the question that is being raised at this point is whether the interdependency of both external and internal factors is a sufficient answer to explain the complex process of Europeanization of Montenegro and the entire Western Balkans region. More specifically, whether the inter-play between the EU and domestic actors provides satisfactory insights over the Union’s negatively reinforcing effects on empowering judiciary reform and the fight against corruption.

In order to provide an explanation to the questions at hand, this research stems from the assertion that it is, first of all, necessary to answer two specific questions of crucial importance. First of them is can the theoretical concept that was fully applicable to the logic of Europeanization of Central and Eastern Europe (CEE) also be applied to the logic of Western Balkans (after more than 13 years since its introduction)? Second, is there any influence of other factors, apart from the overlapping impact of the EU and domestic factors, which can also explain reasons on the EU having failed to Europeanize Montenegro even though more than 10 years have passed since the beginning of the accession process?

It seems that currently the Western Balkan countries are facing new political realities and different security environment unlike the situation in the beginning of the ‘90s in the CEE region. While both regions (have) demonstrated same aspiration to join the EU after the collapse of communism, both of these areas (have) faced substantially different political issues

288 and international relations security challenges. Evidently, the end of the Cold War Era and disappearance of communism brought to the CEE countries not just freedom from the totalitarian regime, but also different international relations environment. Creation of the New World Order in the beginning of the ‘90’s or “the end of history”80 was primarily characterized by victory of the United States in the Cold War confrontation and consequent dissolution of the Soviet Union, disappearance of the bipolar system, and a necessity for establishing a new, more secure, and prosperous multilateral system of international relations, characterized by the fall of communist regimes in Europe, unification of Germany, and further strengthening of the EC/EU integration processes. In other words, past circumstances in international politics after the end of the Cold War were substantially suitable for the CEE countries in order to accelerate the process of the EU integration not just because of the credible membership perspective given to this region by the Union, but primarily due to establishment of new multilateral system of international relations and a lack of influence of great (regional) powers in new international politics. Inability of active involvement in new international politics, especially over the advancement of the CEE states in the EU accession process at the end of the 20th century was particularly noticeable in the then transitional Russia and newly redefined (based on the principle of market economy, that is) China. Simultaneously, emergence of the new world order created conditions for further development of relations between regional powers in various fields of cooperation, especially in the areas of soft security issues, reduction of conventional and nuclear weapons, determination of military rivalry, and additional focus on internal state problems.

Respectively, the fall of the bipolar system of international relations created the necessity of redefining Russian foreign policy strategy. The loss of vast territories without access to warm seas and ports, absence of a corridor linking Russia with the West, and more than 23 million Russians living outside its borders were clear signs that the post-communist giant was facing chiefly negative political and strategic post-Cold War consequences. In addition, if one consider the fact that Russia’s military forces were significantly weakened, reduced, and pulled back some 1500 km to the east while its planned type of economy experienced a complete collapse, then it might be reasonable to conclude that disintegration processes hit Russia so hard that it was impossible to compete or to challenge the EU on either political or economic level. Indeed, Russian internal political and economic crises lasted for

80 For more details: Fukuyama, F., The End of the History and the Last Man, New York, Macmillan, Franc1992).

289 more than decade, and when combined with profound geo-strategic problems they had significant impact on Russia, its active participation in international relations, thus also potentially undermining the integration processes of the CEE countries (Bžežinski 2001: 40). In addition, rise of the political instability and economic decline in China at the end of the 1980’s and the emergence of Tiananmen Square protests caused by political corruption, nepotism, and deviation from communist ideologies by the CEE states and establishment of new democracies, coupled with economic inflation, kept China for a long time heavily isolated from the international relations scene. Evidently, wide spread problems unambiguously determined the pragmatic development of this country focusing profoundly on solving internal political and economic challenges, while at the same time showing no particular interest in potential interference in the EU politics or in political affairs of the CEE countries by using its soft power mechanisms.

Thus, the established new world order suggests that cooperation between great powers was primarily based on absence of political tensions or military rivalry. As a result, it might be assumed main aim of this multilateral cooperation between various international factors was primarily oriented towards maintaining international peace, security, stability, and strengthening global prosperity. However, current political and security situation in the Western Balkans does not show any main features of peaceful and secure region in which powers cooperate in order to preserve regional stability. Rather, following the last decade, the territory of the Western Balkan states has become once again the scene of animosity between great powers and confrontation over their geo-political and geo-strategic ambitions. Unlike the accession momentum of the CEE countries, the great powers once again have started using the tools of military and security competition aiming to maximize their power at the expense of other states in the Western Balkans region as a consequence of the given situation in the multilateral system of international relations.

Following Kissinger’s thoughts, it seems that the global world order has never actually existed. What we call today a new world order was created at the Westphalia Peace Conference almost four centuries ago (1648) and then spread all over the world, whereby states represent main actors abiding by principles of independence, sovereignty, national interests, and lack of interference into internal affairs of other states. However, the fact is that the Westphalia Peace principles have been substantially challenged by great powers in recent years. The reason is simple, as almost all civilizations have had their own different conceptions of the world order as based on their own unique principles. Europe has primarily sought to digress itself from its

290 own international concept in order to overcome it by establishing new concept of joint sovereignty. Russia has proved countless times in the history that the principle of sovereignty and territorial integrity of the country has no legitimacy if these claims are in confrontation with nationalist-expansionist interests. China continues to regard itself as a highly politically and culturally developed country in which the climate of existing rivalries and historical requirements still play an important role in foreign policy actions. Islam, on the other hand, still sees itself as a political and religious entity that has the legitimacy to spread out its religious beliefs on other "infidel" states. The United States, as one of the most powerful countries in the world has been hesitating between Europe’s Westphalia conception and its own well know foreign policy of isolationism. Obviously, all great powers have come to respect to some extent the premise of the Westphalia Order, but none is considered to be a defender of that system. In particular, global actors in the new system of international relations have still not reached consensus about rules and principles, or ultimate goals and scopes of action in international order. Instead, the new world order is primarily characterized by a high degree of tensions and rivalries between great forces in international relations (Kissinger 2014).

Without any hesitation, current political and security environment in Western Balkan region contains all characteristics of a powerful rivalry of great powers strongly grounded in the theoretical approach of neorealism. Mearsheimer’s (2001) theory of neorealism based on the concept of “offensive realism” claims that the multipolar system is more inclined to war than the bipolar system of international relations due to existence of several powerful states, potential hegemons, that are the most dangerous actors within the system. This approach argues that states fear each other and therefore constantly compete for gaining more power because the main goal of each country is to maximize its share of world power at the expense of other countries. According to the theory of offensive realism, the ultimate goal of all great powers is primarily obtaining the status of hegemon and being the only great power in the system of international relations. Indeed, provided theoretical interpretation is primarily observable in the Western Balkans region where competitiveness as a pattern of behaviour in the international sphere exists between various great powers, namely the EU (US), Russia, China, and Turkey.

Following this theoretical conception, these actors are not satisfied with the current distribution of power in the region, and therefore all their actions are based on shifting the power in their favour. These countries have continuously demonstrated revisionist ambitions over the current distribution of power in the region by using both hard and soft power tools in order to change balance of power if served at a reasonable price. Obviously, the pursuit of

291 power remains the main driving force of great powers in the Western Balkans, which, however, does not mean that these powers only seek to gain power at the expense of others, but rather prevent others from such gains also. In the case of the given region, the great powers primarily behave in this manner because they fear each other and are never certain of each other’s ambitions and intentions. In order to maximize the power in the region, great powers such as the EU, Russia, China, and Turkey are trying to alter the balance of power by constantly looking for opportunities at the expenses of their rivals. Given the fact that the main goal of these states is gaining the status of hegemon in the system of international relations, the great powers have shown pronounced interest for engaging in the given region in recent years due to various geo-political reasons and regional geo-strategic importance. They have used a wide range of different positive or negative means to do so – economic, trade, diplomatic, and military actions aiming to shift the balance of power. Thus, it might be grounded to claim that the rivals have at their disposal various means in order to secure their supremacy in the region, and therefore, achieve the hegemon status by removing all potential internal or external threats challenging their power and influence (Mearsheimer 2001; Burchill et. al 2001; Little 2007).

Indeed, geo-political and geo-strategic relevance of Montenegro as the Adriatic state has continued to be one of the important strategic points of rivalry between various international factors in the region, notably the EU, Russia, China, and Turkey. Primarily, the country has a favourable geopolitical position because it is located near to the Union’s southern borders (Croatia), while its integration remains so far (along with the remaining Western Balkans states) one of the EU’s most challenging foreign policy tasks. Also, Montenegro is surrounded by NATO member states – Croatia and Albania on its western and south-eastern borders, aspirant for NATO membership – Kosovo on its eastern border, and by military neutral state and entity – Serbia and Republika Srpska (Bosnia and Herzegovina) on its north-east and north-west borders.81 On the other hand, based on strong cultural and historical relationships between two states, Russia aims to preserve its profound influence in Montenegro by using uneven soft economic and hard political power. From the Russian geopolitical perspective, the importance of keeping Balkan Orthodox states under its umbrella is a consequence of expansion of the influence of the US and NATO through its enlargement policy in the region. The same geopolitical reasons are identically applied to the EU and NATO perspective.

81 Serbia declared its military neutrality on 26 December 2007 aby adopting a parliamentary resolution. Republika Srpska as a second entity of Bosnia and Herzegovina also declared its military neutrality by doing so on 18 October 2017 in the same manner as Serbia had already done it.

292

However, geopolitical significance of Montenegro is also determined in its continuation of cooperation with Serbia being the main regional actor and strong supporter of maintaining cultural, historical, and political ties with Russia. Existence of alleged brotherly relations, often exploited in the political discourse between the two Balkan countries, coloured by different foreign policy goals nowadays, demonstrates complexity of international politics in the region, while at the same time rivalry between the West and East on such a small territory remains profoundly vivid. On the other hand, Chinese influence in Montenegro in recent years has been leveraged by use of economic soft power and its continuous investments in infrastructure projects, keeping the state’s doors open to further economic growth. However, this format has been criticized by the Union, emphasizing that economic cooperation remains controversial due to conflict with the EU laws and erosion of the EU norms and values (European Parliament 2017b).

By the same token, by being a member of the collective system of security in NATO, Montenegro and the Alliance are continuously faced with prevalent soft security issues arising in the region, namely in dangers posed by terrorism, nationalism, ethnic, national and religious conflicts, weapon smuggling, border disputes, migration, refugees, and similar. Given the current insecurity in the system of international relations, these challenges have continued to call into question not only peace of the regional countries but chiefly stability of the EU and NATO member states. Arguably, the more unstable and insecure Montenegro, and therefore the Western Balkans is, the more likely it is to expect that effects of these challenges will pose a challenge to the EU countries as well. Proximity of Montenegro and the region in terms of soft security challenges may easily produce a spill-over effect to the EU and NATO member states making them even more insecure and susceptible to various political and security influences. A recent example of migration crisis has left profound consequences in the region and has additionally proven the lack of consensus among the EU member states on solving this particular issue. It has also affected widespread growth of populism and popularity of extreme right-wing political parties in the EU, consequently making European political scene more radical than ever before.

Finally, Montenegro is located on a very important geo-strategic point in the Balkans. Not so relevant because of the size of its territory but by becoming the NATO member state, the country has thwarted the last Russian ambition to gain access to the only remaining warm sea in order to establish a balance of power with NATO in the Mediterranean Sea area. Montenegro’s membership in the Alliance has allowed for NATO naval defence to be fully

293 established and secured by stretching all the way from the Baltics to the Aegean and the Black Sea. In broader context of a geo-strategical talk, by filling out the existing geo-strategic vacuum in Montenegro the great powers have ensured the opportunity to have quicker access to two strategically important continents: Europe and Asia.

In line with the concept of offensive realism, the Western Balkan states have emerged at the top of Russian foreign policy agenda during the last decade as a way of geopolitical confrontation with the EU and the US. Russia has profound relationships with many Western Balkan states, including Montenegro, through the existence of strong historical, cultural, political, and economic ties. Evidently, Russia uses the opportunities of uneven soft and hard power within broad policy areas taking the advantage of the Balkan’s political and economic difficulties in order to expend its influence and potentially mitigate the regional stability. By using various opportunities, such as outcomes of Euro and migration crises, Brexit, high internal unemployment (consequently tarnishing the Union’s image), Russia continuously seeks to leverage its substantial influence by undermining the values of the EU and NATO and their achievements in the Western Balkans (EP 2017a; House of Lord of the United Kingdom 2018; LSE Report 2015).

Many scholars agree that Russia bears the features of an “opportunistic spoiler.” By using the rhetoric of maintaining supposed brotherhood, coupled with a shared sense of victimhood, Russia has underpinned its foreign policy actions and initiatives through strong interference in the regional internal political process and changes. At the same time, it has been reluctant to provide the region an alternative perspective for achieving stability and prosperity compared to Western models. Notably, Russia does not have a long-term strategy over the development of relations with the Western Balkans, but its advantages are primarily seen in swift decisions and flexible actions. As a result, in order to gain supremacy in the Western Balkans space, and therefore to undermine credibility of the Alliance and the EU, Russia has used both soft and hard power mechanisms in the form of financing eligible political parties and individuals, establishing pro-government medias in the region, strengthening political corruption and clientelism, inspiring coups, etc. (European Parliament 2017a; House of Lord of the United Kingdom 2018; LSE Report 2015; European Western Balkans 2017).

By viewing the Western Balkans as its traditional sphere of influence, Russia has strongly opposed the NATO enlargement and in the recent years the EU integration process as well. In that regard, worsening relationship between Montenegro and Russia was influenced

294 by Montenegrin decision to align with the EU sanctions against Russia following the annexation of Crimea in 2014, and to and join NATO on 5 June 2017. As a result, Montenegrin foreign policy acts have been perceived by Kremlin as hostile actions and reflected in continuous declining trends in the fields of political and economic cooperation. In any case, prior to the NATO admission Russia continuously and strongly sought to thwart Montenegro’s ambitions to join Alliance. At the first instance, Russia mainly used soft power tools in order to prevent the state’s intention on joining the Alliance ranging from: 1) strong political accusations disseminated by high-ranking political officials, such as from Russian Deputy Prime Minister Dmitry Rogozin saying that Montenegro was going to regret joining NATO, and even surprisingly from Russian Foreign Minister, Sergey Lavrov, who in March 2017 stated that Montenegro sacrificed its economic relations with Russia by joining NATO; 2) Russian Foreign Ministry’s warning not to travel in Montenegro while Russian state media immediately started running a negative campaign by portraying Monetengro as corrupt and insecure (although it’s a highly popular holiday destination among Russians); 3) and ban of Montenegrin wines over alleged hygiene concerns (European Parliament 2017a; House of Lord of the United Kingdom 2018; Center for the Study of Democracy 2018).

In addition, the Russian ruling political elite was not immune to imposing the hard power means towards small Adriatic state aiming to thwart the accession to NATO. The latest in a series of confrontations between two countries occurred in 2016, just a few months before Montenegrin acquisition of full membership in the Alliance, when Montenegro accused Russia of meddling in the 2016 parliamentary election by attempting to overthrow the Prime Minister and most prominent political figure Milo Đukanović by financially supporting the strongest opposition political party, the Democratic Front (DF). Consequently, the Special Prosecutor’s Office opened a court case on the coup attempt against some of the DF leaders, several Serbian nationalists, and two Russian military intelligence officers (European Parliament 2017a; House of Lord of the United Kingdom 2018; Center for the Study of Democracy 2018).

Nevertheless, despite the alleged coup initiated by the Russian Government and its imposition of hard and soft power over undermining security and stability in the country, Montenegro succeeded in joining NATO. However, current political tensions exist on both sides, although Montenegrin politicians continue to emphasize that they want the best possible relations with Russia even after alleged coup orchestrated by Russia. Although a number of investments has halved since the period of gaining independence, the fact remains that Montenegro remains dependent on Russian economic support. Montenegro’s dependency on

295 economy of Russian investments in real estate and tourism opens a real question of the possibility of reducing the influence of Russia in the country, bearing in mind, of course, the fact that more than 250.000 citizens of the Russian Federation visit Montenegro each year and a significant number of them own property in the country.82 On the other hand, Russia continues to strengthen its influence in the country by stablishing political party ties with opposition pro-nationalist political parties and active involvement of Serbian Orthodox Church in social conditions and internal political affairs. Strategic presence of Russia and its further influence in the region cannot be ignored, and it might be reasonable to assume, based on the past soft and hard power actions, that this great power shall continue to undermine the stability of Montenegro during the EU integration process. After all, Montenegro has aligned with the EU’s foreign policy actions towards imposing sanctions on Russia since 2014. Objectively speaking, Russian interference in the state’s internal political affairs is now only possible through the accession negotiation process, and it represents a good way to destabilize not just Montenegro and the region, but also to produce a spill-over effect towards the EU member states. Therefore, it might be grounded to expect that further Russian meddling activities will be directed towards strengthening an anti-regime block through providing more financial support to opposition party activities with the aim of discrediting Montenegrin progress in the accession process, particularly so over the rule of law reforms, lobbying, and presenting the state to European institutions as an entity with deeply rooted problem of corruption, organized crime, and politicized judiciary. On the other hand, one must not neglect the fact that Russia was accused by the West for initiating the alleged coup in Montenegro by being active in undermining the EU’s effort to strengthen peace, security, and stability in the region (European Parliament 2017a; House of Lord of the United Kingdom 2018; Center for the Study of Democracy 2018; Uljarević-Vučković 2014).

Unlike Russia, China relies more on soft power use over increasing its influence in Montenegro and overall in the Balkans. During the last decade, China has managed to strengthen its regional cooperation with the Western Balkans by means of a sub-regional initiative “16+1,” consisting of 11 EU member states and 5 candidate countries. Under the “One belt, One road” initiative, China’s interests in the Balkans substantially differ from that of Russia. China is not opposed to the EU and NATO enlargement of the Western Balkans, and it mainly uses its economic leverage in order to enhance its regional influence. Moreover,

82 Russian investments in Montenegrin economy have been significantly reduced in recent years from 29.4 % of total revenue in 2006 to 5.5 % in 2015. For more details: http://www.csd.bg/artShow.php?id=18131 .

296 it might be reasonable to claim that Chinese investments are more than welcome in the Western Balkans, including Montenegro. By providing loans to the Western Balkan countries, Chinese companies are visibly present on Montenegrin market and are competitive to domestic firms in reconstructing and building highways, roads, tunnels, and bridges. Chinese commercial involvement has been highly appreciated by the domestic ruling elites because it has brought the economic growth of the state, while its policies do not interfere into the internal affairs. However, main concerns over Chinese investments in Montenegro are related to securing loans and not grants for performing specific infrastructure projects, which might lead to rising national debt. Following the case of current construction of a highway in Montenegro provided through a loan by a Chinese bank, the Government took a loan from the Exim Bank in total amount of 809.6 million EUR, which is about a quarter of Montenegrin GDP in the US dollars. This means that based on current exchange rate, the amount of loan when increased by additional 25% remains a serious risk for economic collapse of the country. Chinese economic investments in Montenegro are primarily the product of a long-term strategy in seeing Montenegro as the state that will one day will join the Union, which would allow for lobbying for Chinese political interests to happen when all major investments in the Montenegro are concerned (European Parliament 2017b; House of Lord of the United Kingdom 2018; Radio Slobodna Evropa).

Turkey has used its soft power influence through cultural and educational programmes in the Western Balkans by targeting the Muslim community. Turkish soft power is reinforced primarily through the reconstruction and restoration of Islamic religious objects from the period of the Ottoman Empire and financially supported by Turkish development agency, TIKA. Another source of regional influence is observable through the establishment of cultural centres, respectively the Institute Yunus Emre, which aims to provide more insight and information on Turkish culture and art. However, Turkey’s intention to enhance “silent Islamisation” raises certain concerns over non-Muslim community claiming that respective Turkish actions raise religious and ethnic tensions. On the other hand, Turkish geo-political intentions and ambitions in the region remain unclear in terms of the EU accession process in the region. So far, Turkey has not opposed any regional initiatives over joining the Union. However, one should not be surprised if Turkey develops a new and more advanced soft power strategy by being more competitive towards the EU in the region. After all, the Union’s decision to stop the accession negotiation process with Turkey due to allegations of human rights violations could serve as a valuable trigger for this country to commence a more active

297 geopolitical role in the region by increasing its influence by at the same time undermining the Union and its potential membership perspective for the given region (European Parliament 2017c; House of Lord of the United Kingdom 2018).

Insufficient interplay of the EU-domestic factors and influence of Russia as the undermining actor

Therefore, based on the provided theoretical argumentations and empirical explanations, it might be grounded to conclude that the inter-play of domestic and external factors in addressing political accession criteria is not sufficient to fully explain why the EU has failed to Europeanize Montenegro in the EU integration process. Without a question, Schimmelfennig and Sedelmeier’s theoretical concept has provided valuable and credible insights on the process of the EU rules and norms adoption conducted by the non-member states by focusing on two levels of interaction – the EU external driven pressure and domestic response. In particular, it has revealed that the Union’s impact on domestic changes in Montenegro has resulted in its lack of willingness to domestic ruling to align with the EU’s demands, Brussel’s inconsistency and ineffectiveness, and low quality of legal and institutional changes induced.

Proclaimed theoretical framework contains limited scope of full explanation to the question why the EU has introduced negative reinforcing impact on empowering judiciary reform and combating corruption and positive reinforcing impact on empowering regional cooperation in Montenegro. Obviously, the current theoretical framework contains visible loopholes in the existing argumentation through the lack of applicability of logic of Europeanization of the CEE countries to the Western Balkans case, by failing to address the existence and influence of other international factors in undermining the process of adoption of the EU acquis and policy alignment. It particularly omits very important argumentation that effective fulfilment of the EU political accession criteria does not solely depend on interdependency of the EU and domestic factors, but it also substantially depends on other international factors, respectively influences of great powers. Moreover, based on Mearsheimer’s theory of offensive realism and its concept on competition of great powers in seeking to gain hegemony, Russian struggle in maintaining its geo-political influence in the Western Balkans region including Montenegro, at the expenses of other states can be used as an important contribution to the dissemination of new scientific knowledge in the

298

Europeanization literature and further development of the existing theoretical framework. It is quite clear the profound influence of Russia on internal political affairs in Montenegro and the entire region can be used as another valuable empirical explanation why the state has failed to effectively comply with the EU requirements. The impact of Russia in the region, as its traditionally sphere of influence is undoubtedly powerful, and its effects through the use of both hard and soft power mechanisms have undermined the regional stability and therefore the stability of the EU itself. At the same time, it has consequently affected Montenegro’s mitigation to assume the obligation of the EU membership in the near future.

Although the EU has not effectively imposed overall domestic changes, it is quite clear that the Union’s externally driven initiatives have led to some visible results over judiciary reform, particularly so in judicial effectiveness and efficiency dimensions during the integration phase. Additionally, externally driven pressure has managed to persuade the candidate country to align itself with the SAP conditions by actively promoting regional cooperation through its full commitment to regional peace and stability and development of good neighbourly relations. Compared to other international factors, the EU has continued to be a major driving force in overall reform process in Montenegro, thus reflecting positive changes in rule of law, human and minority rights, regional cooperation, and market economy. Therefore, it might be reasonable to conclude that the state’s shift over adoption of the acquis and alignment with the EU policies have increased primarily with the identification of Montenegro and its society with EU values and identities, but also due to absence of alternatives in the form of external incentives provided by other international factors.

Conclusion

The research outcomes over the presented theoretical and empirical discussions have revealed three major conclusions serving as valuable starting points for further developments of Europeanization in the given area. Firstly, based on the empirical results this study has argued that EU has failed to Europeanize Montenegro, especially in the fields of judiciary reform and the fight against corruption during the whole integration phase. The Union has particularly produced negatively reinforcing influence on strengthening Montenegrin judiciary system and respective anti-corruption policy framework, which is a product of corelation between the Union and unfavourable domestic conditions. The claim of absence of the Union’s transformative power regarding judiciary reform and fight against corruption in Montenegro

299 represents novelty within the Europeanization literature, and additionally it significantly differs from previous research outcomes within the field of Europeanization and EU Studies.

Secondly, the study has concluded that the effective adoption and alignment with the EU accession demands does not solely depend on interdependency of the EU and domestic factors, but rather it also substantially depends on influence of other international factors, namely the influence of great powers in the Western Balkans. Following the upgraded theoretical argumentation, the empirical findings have shown that strong influence of Russia in Montenegro and in the whole region by means of interference into internal political affairs remains one of the most important factors substantially undermining the state’s compliance with the EU requirements. By using various soft and hard power means, Russia seeks to destabilize the states of the region by producing the same spill-over destabilizing effects aimed at the EU member states as well. The case of Montenegro and Russian active involvement in the process of undermining stability of the country, which is the front-runner in the EU accession process, has proved this claim. On the other hand, it might be grounded to argue that Montenegrin possibility to cooperate with other international factors such as China and Turkey, respectively those regional powers which do not question political legitimacy of the domestic ruling elites nor do they interfere into internal political affairs, has significantly affected reduction of euphoria for the advance in the EU accession process with the domestic political leaders. Thus, the state’s possibility to choose between the policies of alternatives and of opportunities may be one of the key reasons for explaining why the domestic political elites have demonstrated continuous unwillingness to effectively address the Copenhagen political criteria. As a result, the EU has been faced with highly problematic Europeanization of Montenegro during the entire accession process.

Thirdly, the last conclusion stems from the applied theoretical approach. It reveals that the Europeanization theory as presented by Schimmelfennig and Sedelmeier is not fully applicable to the complex processes in the Western Balkans. It requires additional academic attention in redefining current theoretical concepts so as to be properly adjusted to specific Western Balkans circumstances and conditions. Therefore, new theoretical concepts assume that the inter-play between the EU, domestic and international factors for adopting the EU acquis and alignment with the EU policies by non-member states represents an important contribution in regards to filling the existing research gap in the appropriate academic scholarship, particularly so in the fields of European integration and the EU studies alike. Also, it may serve as a solid starting point regarding the theoretical basis for redefining existing

300 framework and development of new scientific knowledge in the area of the Western Balkan politics.

Finally, this research has defined five specific research questions which are strictly tied to the main research question seeking to provide insights with reference to the effectiveness of the EU impact on institutional and policy preferences in Montenegro. Thus, based on the main research question, the EU transformative power has not resulted in institutional and policy changes in Montenegro during the pre-negotiation and negotiation phase, overall producing negatively reinforcing effects.

Hence, following the first specific research question, the EU has introduced various demands in the fields of judiciary reform (1), fight against corruption (2), strengthening regional cooperation and developing bilateral relations (3) during the accession process. They range from:

1.1) reducing political influence of the Parliament through the appointment of the Judicial and Prosecutorial Councils; appointments of the Supreme Court President and the Supreme State Prosecutor by the Parliament by simple majority; appointment and dismissal of the president of the Judicial Council by the Parliament; participation of the Ministry of Justice as a voting member in the Judicial Council; appointments, promotions, disciplinary proceedings and dismissal of judges and prosecutors, etc.; 1.2) monitoring of judiciary in corruption and conflict of interest; ensuring effective monitoring of compliance with the code of ethics, etc.; 1.3) reducing backlog in both civil and criminal cases; weak enforcement of civil decision and long duration of court proceedings, etc.; 1.4) trainings of judges and prosecutors by the JTC; 2.1) strengthening the legal framework by amending and implementing the laws on conflict of interest and political parties; ensuring independent supervisory and auditing authorities to enforce assess declaration of assets and funding of political parties, etc.; 2.2) providing credible track-records of investigation, prosecution, and final conviction of high-level corruption cases, etc.; 3.1) contribution to peace and stability in the region by active participation in regional initiatives;

301

3.2) improving bilateral relations with neighbouring states, other candidate countries not listed in the SAA (Turkey) and the EU member states.

Concerning the second specific research question, the EU has introduced various external incentives aiming to induce Montenegro’s alignment with the accession conditions. It has primarily emphasized the importance of carrot instead of a stick during the whole integration process by imposing the reward mechanism over any threats. It means that the Union has not imposed either explicit or implicit threats in order to impose the state’s compliance with the EU demands. In this sense, the EU has developed a wide range of accession advancement rewards in the form of: providing potential membership perspective, signing the SAA, the SAA entering into force, being granted the candidate status, opening the accession negotiation, opening the accession negotiation chapters and provisional closure of the negotiation chapters. In addition, the Union has also provided financial rewards, thus ensuring financial assistance to Montenegro through the Instruments for Pre-Accession Assistance (IPA I and II) in the given policy areas.

In regards to the third specific research question, the state institutions have conducted further efforts in strengthening their strategy framework, legal system, and institutional set up during the accession process in the field of judiciary in Montenegro by improving appointments of members of the Judicial and Prosecutorial councils and of State Prosecutors, and also reinforced independence, autonomy of judges and prosecutors, accountability, effectiveness, and efficiency of judges and prosecutors. By the same token, the authorities have taken additional actions and initiatives over improvements of the anti-corruption legal and institutional framework and implementation of the government's anti-corruption strategy and action plans, along with track record of proactive investigations, prosecutions, and convictions of high-level corruption cases. Finally, the Government has demonstrated visible efforts in active contribution to peace and stability in the region by becoming a member and active participant in various regional initiatives and reconciliation efforts, with a climate conducive to addressing open bilateral disputes and legacies of the past.

With reference to the fourth specific research question, a strong impact of various range of public and private veto players has stood opposed to the state’s alignment with the political accession criteria such as judiciary reform and the fight against corruption. The veto players (political elites, post-transition profiteers, business corruption elites, financial tycoons, etc.) originating from the post-communist period have deeply infiltrated all levels of governance

302 and administration by means of financial support of the governing party. Close criminal network cooperation between the corrupt ruling elite and the private veto players primarily ensures political protection of these players from possible investigation, prosecution, and final conviction in the country where strong political influence over judiciary, especially over independence and impartiality of judges and prosecutors, still looms large. Therefore, it might be grounded to claim that corruption in Montenegrin judiciary primarily secures the status of both corrupt political elites and veto players as legally untouchable regardless of their corrupt actions and manoeuvres. By providing financial support and donations for the ruling party and its election campaigns, these organized criminal clans realize their private interests through corrupt executive power that remains a suitable tool for increase of their illegal wealth.

On the other hand, existence of facilitating factors, namely civil society organizations (CSOs), primarily NGOs and academia representatives, still does not have any convincing influence in providing assistance in the given judiciary reform and the fight against corruption. Evidently, NGOs have been prevented by the state to keep an active role of watch-dogs in the country during the accession process. In particular, although they provide substantial efforts in monitoring the process of reform of Montenegrin judicial system and in combating corruption, CSOs do not have any particular influence related to decision-making process, consequently playing rather marginal role in this regard.

And finally, concerning the last specific research question, motivation under which have ruling elites have demonstrated willingness to effectively comply with the EU demands are primarily observable in the case of fulfilment of the SAP conditions. In particular, tackling regional cooperation criteria has been conducted by Montenegro as domestically driven process under socialization followed by the logic of appropriateness only then when addressing those requirements has in the same time meant not calling into question long-lasting political power of the ruling elites and their political influence in the given system. In other words, the state’s fulfilment of the SAA conditions during the integration phase has not interfered with the basic principles of already established political structure in the country nor has it jeopardized survival of the domestic political elites, as can be seen in the issues of politicization of judiciary and political corruption where Europeanization process was primarily the EU-driven conditionality followed by the logic of consequence. Rather, smooth fulfilment of the SAP conditions has been beneficial for the domestic political elites due to substantially strengthening their political positions both at the regional and the EU level alike.

303

7. Bibliography 7.1 Primary sources

o Berlin Process, ‘Final Declaration by the Chair of the Conference on the Western Balkans,’ Western Balkans Summit, 2014, http://wb-csf.eu/wp-content/uploads/2017/11/Final-Declaration-by-the-Chair-of-the- Conference-on-the-Western-Balkans.pdf, (accessed 16 April 2018).

o Berlin Process, ‘Final Declaration by the Chair of the Vienna Western Balkans Summit,’ Western Balkans Summit, 2015, http://wb-csf.eu/wp-content/uploads/2017/11/Final-Declaration-by-the-Chair-of-the- Vienna-Western-Balkans-Summit.pdf, (accessed 16 April 2018).

o Berlin Process, ‘Annex 2 – Join Declaration on the establishment of the Regional Youth Cooperation Office in the Western Balkans,’ Western Balkans Summit, 2015, http://wb-csf.eu/wp-content/uploads/2017/11/Joint-Declaration-on-the-establishment- of-the-Regional-Youth-Cooperation-Office-of-the-Western-Balkans.pdf, (accessed 16 April 2018).

o Berlin Process, ‘Annex 3 – Regional Cooperation and the Solution of Bilateral Disputes,’ Western Balkans Summit, 2015, http://wb-csf.eu/wp-content/uploads/2017/11/Regional-Cooperation-and-the-Solution- of-Bilateral-Disputes.pdf, (accessed 16 April 2018).

o Berlin Process, ‘Final Declaration by the Chair of the Paris Western Balkan Summit,’ Western Balkans Summit, 2016, http://wb-csf.eu/wp-content/uploads/2017/11/Final-Declaration-by-the-Chair-of-the- Paris-Western-Balkans-Summit.pdf, (accessed 16 April 2018).

o Constitution of Montenegro, (Articles 123, 126, 127, 128), 2007, http://www.skupstina.me/images/dokumenti/ustav-crne-gore.pdf, (accessed 17 April 2018).

o Council of the European Union, ‘European Partnership with Montenegro,’ Council of the European Union, 2007, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=LEGISSUM%3Ar18014, (accessed 15 April 2018).

o European Commission, ‘Agenda 2000: for stronger and wider Europe’, European Commission, 1997, http://ec.europa.eu/agriculture/sites/agriculture/files/caphistory/agenda2000/com9720 00_en.pdf, (accessed 14 April 2018).

304 o European Commission, ‘Stabilization and Association Process’, European Commission, 1999, https://ec.europa.eu/neighbourhood-enlargement/policy/glossary/terms/sap_en, (accessed 14 April 2018). o European Commission, ‘Zagreb Summit Declaration,’ European Commission, 2000, http://www.esiweb.org/pdf/bridges/bosnia/ZagrebSummit24Nov2000.pdf,(accessed 14 April 2018). o European Commission, ‘Communication from the Commission to the European Parliament and the Council: Enlargement Strategy and Main Challenges 2006 – 2007 including annexed special report on the EU's capacity to integrate new members,’ European Commission, 2006a, https://ec.europa.eu/neighbourhoodenlargement/sites/near/files/pdf/key_documents/20 06/nov/com_649_strategy_paper_en.pdf, (accessed 14 April 2018). o European Commission, ‘Montenegro Report 2006,’ European Commission, 2006b, https://ec.europa.eu/neighbourhoodenlargement/sites/near/files/pdf/key_documents/20 07/nov/montenegro_progress_reports_en.pdf, (accessed 15 April 2018). o European Commission, ‘Renewed consensus on enlargement,’ European Commission, 2006c, http://europa.eu/rapid/press-release_IP-06-1523_en.htm?locale=en, (accessed 14 April 2018). o European Commission, ‘Communication from the Commission to the European Parliament and the Council: Enlargement Strategy and Main Challenges 2007 – 2008,’ European Commission, 2007a, https://ec.europa.eu/neighbourhoodenlargement/sites/near/files/pdf/key_documents/20 07/nov/strategy_paper_en.pdf, (accessed 16 April 2018). o European Commission, ‘Montenegro Report 2007,’ European Commission, 2007b, https://ec.europa.eu/neighbourhoodenlargement/sites/near/files/pdf/key_documents/20 07/nov/montenegro_progress_reports_en.pdf, (accessed 15 April 2018). o European Commission, ‘Communication from the Commission to the European Parliament and the Council: Enlargement Strategy and Main Challenges 2008 – 2009,’ European Commission, 2008a, https://ec.europa.eu/neighbourhoodenlargement/sites/near/files/pdf/press_corner/key- documents/reports_nov_2008/strategy_paper_incl_country_conclu_en.pdf, (accessed 15 April 2018). o European Commission, ‘Montenegro Report 2008,’ European Commission, 2008b, https://ec.europa.eu/neighbourhoodenlargement/sites/near/files/pdf/key_documents/20 09/mn_rapport_2009_en.pdf, (accessed 15 April 2018).

305 o European Commission, ‘Communication from the Commission to the European Parliament and the Council: Enlargement Strategy and Main Challenges 2009 – 2010,’ European Commission, 2009a, https://ec.europa.eu/neighbourhoodenlargement/sites/near/files/pdf/key_documents/20 09/strategy_paper_2009_en.pdf, (accessed 15 April 2018). o European Commission, ‘Montenegro Report 2009,’ European Commission, 2009b, https://ec.europa.eu/neighbourhoodenlargement/sites/near/files/pdf/key_documents/20 09/mn_rapport_2009_en.pdf, (accessed 15 April 2018). o European Commission, ‘Communication from the Commission to the European Parliament and the Council: Enlargement Strategy and Main Challenges 2010 – 2011,’ European Commission, 2010a, https://ec.europa.eu/neighbourhoodenlargement/sites/near/files/pdf/key_documents/20 10/package/strategy_paper_2010_en.pdf, (accessed 15 April 2018). o European Commission, ‘Commission Opinion on Montenegro’s application for membership of the European Union,’ European Commission, 2010b, https://ec.europa.eu/neighbourhoodenlargement/sites/near/files/pdf/key_documents/20 10/package/mn_opinion_2010_en.pdf, (accessed 15 April 2018). o European Commission, ‘Communication from the Commission to the European Parliament and the Council: Enlargement Strategy and Main Challenges 2011 – 2012,’ European Commission, 2011a, https://ec.europa.eu/neighbourhoodenlargement/sites/near/files/pdf/key_documents/20 11/package/strategy_paper_2011_en.pdf, (accessed 15 April 2018). o European Commission, ‘Montenegro Report 2011,’ European Commission, 2011b, https://ec.europa.eu/neighbourhoodenlargement/sites/near/files/pdf/key_documents/20 11/package/mn_rapport_2011_en.pdf, (accessed 15 April 2018). o European Commission, ‘Report from the Commission to the European Parliament and the Council on Montenegro's Progress in the Implementation of Reforms,’ European Commission, 2012a, https://ec.europa.eu/neighbourhoodenlargement/sites/near/files/pdf/key_documents/20 12/montenegro_spring_report_en.pdf, (accessed 14 April 2018). o European Commission, ‘Communication from the Commission to the European Parliament and the Council: Enlargement Strategy and Main Challenges 2012 – 2013,’ European Commission, 2012b, o https://ec.europa.eu/neighbourhoodenlargement/sites/near/files/pdf/key_documents/20 12/package/strategy_paper_2012_en.pdf, (accessed 15 April 2018).

306 o European Commission, ‘Montenegro Report 2012,’ European Commission, 2012c, https://ec.europa.eu/neighbourhoodenlargement/sites/near/files/pdf/key_documents/20 12/package/mn_rapport_2012_en.pdf, (accessed 14 April 2018). o European Commission, ‘Screening Report Montenegro on Chapter 23 – Judiciary and Fundamental Rights,’ European Commission, 2012d, https://ec.europa.eu/neighbourhoodenlargement/sites/near/files/pdf/montenegro/scree ning_reports/20130218_screening_report_montenegro_ch23.pdf (accessed 15 April 2018). o European Commission, ‘Communication from the Commission to the European Parliament and the Council: Enlargement Strategy and Main Challenges 2013 – 2014,’ European Commission, 2013a, https://ec.europa.eu/neighbourhoodenlargement/sites/near/files/pdf/key_documents/20 13/package/strategy_paper_2013_en.pdf, (accessed 16 April 2018). o European Commission, ‘Montenegro Report 2013,’ European Commission, 2013b, https://ec.europa.eu/neighbourhoodenlargement/sites/near/files/pdf/key_documents/20 13/package/brochures/montenegro_2013.pdf, (accessed 14 April 2018). o European Commission, ‘Communication from the Commission to the European Parliament and the Council: Enlargement Strategy and Main Challenges 2014 – 2015,’ European Commission, 2014a, https://www.ab.gov.tr/files/000etkinlikler/2014_enlargement_strategy_paper.pdf, (accessed 16 April 2018). o European Commission, ‘Montenegro Report 2014,’ European Commission, 2014b, https://ec.europa.eu/neighbourhoodenlargement/sites/near/files/pdf/key_documents/20 14/20141008-montenegro-progress-report_en.pdf , (accessed 14 April 2018). o European Commission, ‘Communication from the Commission to the European Parliament and the Council: Enlargement Strategy and Main Challenges 2015 – 2016,’ European Commission, 2015a, https://ec.europa.eu/neighbourhoodenlargement/sites/near/files/20151110_strategy_pa per_en.pdf, (accessed 15 April 2018). o European Commission, ‘Montenegro Report 2015,’ European Commission, 2015b, https://ec.europa.eu/neighbourhoodenlargement/sites/near/files/pdf/key_documents/20 15/20151110_report_montenegro.pdf, (accessed 14 April 2018).

307 o European Commission, ‘Communication from the Commission to the European Parliament and the Council: Enlargement Strategy and Main Challenges 2016 – 2017,’ European Commission, 2016a, https://ec.europa.eu/neighbourhoodenlargement/sites/near/files/20161109_strategy_pa per_en.pdf, (accessed 17 April 2018). o European Commission, ‘Montenegro Report 2016,’ European Commission, 2016b, https://ec.europa.eu/neighbourhoodenlargement/sites/near/files/pdf/key_documents/20 16/20161109_report_montenegro.pdf, (accessed 14 April 2018). o European Commission, ‘A credible membership perspective for and enhanced EU engagement with the Western Balkans,’ European Commission, 2018, o https://ec.europa.eu/neighbourhood-enlargement/policy/eu-and-western-balkans_en, (accessed 14 April 2018). o EU-Western Balkans Summit, ‘Thessaloniki Agenda for the Western Balkans: moving towards the European Integration,’ European Commission, 2003, http://europa.eu/rapid/press-release_PRES-03-163_en.htm, (accessed 14 April 2018). o European Council: ‘Conclusions,’ European Council, 1997, http://www.europarl.europa.eu/summits/lux1_en.htm, (accessed 17 April 2018). o European Council, ‘Conclusions,’ European Council, 2010, http://data.consilium.europa.eu/doc/document/ST-30-2010-INIT/en/pdf/, (accessed 17 April 2018). o European Council, ‘Conclusions,’ 2011, European Council, http://europa.eu/rapid/press-release_DOC-11-8_en.htm, (accessed 17 April 2018). o European Council, ‘Conclusions,’ 2012, European Council, http://data.consilium.europa.eu/doc/document/ST-76-2012-INIT/en/pdf/, (accessed 17 April 2018). o European Parliament, ‘2011 Montenegro Progress Report,’ European Parliament, 2012, http://www.europarl.europa.eu/sides/getDoc.do?pubRef=- %2f%2fEP%2f%2fTEXT%2bTA%2bP7-TA-2011- 0091%2b0%2bDOC%2bXML%2bV0%2f%2fEN&language=EN, (accessed 16 April 2018).

308 o European Parliament, ‘Resolution on the 2012 Montenegro Progress Report,’ European Parliament, 2013, http://www.europarl.europa.eu/sides/getDoc.do?pubRef=- %2f%2fEP%2f%2fTEXT%2bTA%2bP7-TA-2012- 0117%2b0%2bDOC%2bXML%2bV0%2f%2fEN&language=EN, (accessed 16 April 2018). o European Parliament, ‘Resolution on the 2013 Montenegro Progress Report,’ European Parliament, 2014, http://www.europarl.europa.eu/sides/getDoc.do?pubRef=- %2f%2fEP%2f%2fTEXT%2bTA%2bP7-TA-2013- 0185%2b0%2bDOC%2bXML%2bV0%2f%2fEN&language=EN, (accessed 16 April 2018). o European Parliament, ‘Resolution on the 2014 Montenegro Progress Report,’ European Parliament, 2015, http://www.europarl.europa.eu/sides/getDoc.do?pubRef=- %2f%2fEP%2f%2fTEXT%2bTA%2bP7-TA-2014- 0104%2b0%2bDOC%2bXML%2bV0%2f%2fEN&language=EN, (accessed 16 April 2018). o European Parliament, ‘Resolution on the 2015 Montenegro Progress Report,’ European Parliament, 2016, http://www.europarl.europa.eu/sides/getDoc.do?pubRef=- %2f%2fEP%2f%2fTEXT%2bTA%2bP8-TA-2015- 0063%2b0%2bDOC%2bXML%2bV0%2f%2fEN&language=EN, (accessed 16 April 2018). o European Parliament, ‘Russia in the Western Balkans,’ European Parliament Think Thank, 2017a, http://www.europarl.europa.eu/thinktank/en/search.html?word=Russia+in+the+Weste rn+Balkans, (accessed 16 April 2018). o European Parliament, ‘China, the 16+1 cooperation format and the EU,’ European Parliament Think Thank, 2017b, http://www.europarl.europa.eu/thinktank/en/search.html?word=China%2C+the+16% 2B1+cooperation+format+and+the+EU%E2%80%99+%23, (accessed 16 April 2018). o European Parliament, ‘Turkey`s influence in the Western Balkans,’ European Parliament Think Thank, 2017c, http://www.europarl.europa.eu/thinktank/en/document.html?reference=EPRS_ATA% 282017%29607300, (accessed 16 April 2018).

309 o House of Lord of the United Kingdom, ‘The UK and the Future of the Western Balkans,’ Select Committee of International Relations, 2018, https://publications.parliament.uk/pa/ld201719/ldselect/ldintrel/53/53.pdf,(accessed 16 April 2018). o Lisbon Treaty, 2009, http://eur-lex.europa.eu/legal- content/EN/TXT/PDF/?uri=CELEX:12012E/TXT&from=EN, (accessed 17 April 2018). o Ministarstvo pravde Crne Gore, Reforma sistema pravosuđa 2007-2012, Podgorica, Ministarstvo pravde, 2007. o Ministarstvo unutrašnjih poslova i javne uprave Crne Gore, Strategija za borbu protiv korupcije i organizovanog kriminala za period 2010-2014, Podgorica, MUPJU, 2010. o Ministarstvo vanjskih poslova i evropskih integracija, ‘Treći izvještaj o realizaciji obaveza iz Sporazuma o stabilizaciji i pridruživanju u periodu od 1. april-30. jun 2011. godine,’ MVPEI, 2011, http://www.skupstina.me/index.php/me/pristupanje-eu/parlamentarni-odbor-za- stabilizaciju-i-pridruzivanje/dokumenta, (accessed 17 April 2018). o Ministarstvo vanjskih poslova i evropskih integracija, ‘Četvrti izvještaj o realizaciji obaveza iz Sporazuma o stabilizaciji i pridruživanju, jul-septembar 2011. godine,’ MVPEI, 2011, http://www.skupstina.me/index.php/me/pristupanje-eu/parlamentarni-odbor-za- stabilizaciju-i-pridruzivanje/dokumenta, (accessed 17 April 2018). o Ministarstvo vanjskih poslova i evropskih integracija, ‘Peti izvještaj o realizaciji obaveza iz Sporazuma o stabilizaciji i pridruživanju, oktobar-decembar 2011. godine,’ MVPEI, 2012, http://www.skupstina.me/index.php/me/pristupanje-eu/parlamentarni-odbor-za- stabilizaciju-i-pridruzivanje/dokumenta, (accessed 17 April 2018). o Ministarstvo vanjskih poslova i evropskih integracija, ‘Šesti izvještaj o realizaciji obaveza iz Sporazuma o stabilizaciji i pridruživanju, januar-mart 2012. godine,’ MVPEI, 2012, http://www.skupstina.me/index.php/me/pristupanje-eu/parlamentarni-odbor-za- stabilizaciju-i-pridruzivanje/dokumenta, (accessed 17 April 2018).

310 o Ministarstvo vanjskih poslova i evropskih integracija, ‘Sedmi izvještaj o realizaciji obaveza iz Sporazuma o stabilizaciji i pridruživanju, april-jun 2012. godine,’ MVPEI, 2012, http://www.skupstina.me/index.php/me/pristupanje-eu/parlamentarni-odbor-za- stabilizaciju-i-pridruzivanje/dokumenta, (accessed 17 April 2018). o Ministarstvo vanjskih poslova i evropskih integracija, ‘Osmi izvještaj o realizaciji obaveza iz Sporazuma o stabilizaciji i pridruživanju, jul-septembar 2012. godine,’ MVPEI, 2012, http://www.skupstina.me/index.php/me/pristupanje-eu/parlamentarni-odbor-za- stabilizaciju-i-pridruzivanje/dokumenta, (accessed 17 April 2018). o Ministarstvo vanjskih poslova i evropskih integracija Crne Gore, Prvi izvještaj o realizaciji obaveza iz Sporazuma o stabilizaciji i pridruživanju januar – jun 2013, Podgorica, MVPEI, 2013. pp. 13-17. o Ministarstvo vanjskih poslova i evropskih integracija Crne Gore, Drugi izvještaj o realizaciji obaveza iz Sporazuma o stabilizaciji i pridruživanju septembar 2013 – septembar 2014, Podgorica, MVPEI, 2014, pp. 10-17. o Odluka o proglašenju Amandmana I do XVI na Ustav Crne Gore, 2013, Skupština Crne Gore, http://www.skupstina.me/images/dokumenti/ustav/AMANDMANI_I_DO_XVI_NA_ USTAV_CRNE_GORE.pdf, (accessed 17 April 2018). o Stabilisation and Association Agreement between the European Communities and their Member States and the Republic of Montenegro, 2007, Council of the European Union and European Commission, https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/lexuriserv2nd_en.pdf. (accessed 15 April 2018). o Sudski Savjet Crne Gore, ‘Izvještaj o radu 2008’, Sudski savjet, 2008, http://sudovi.me/podaci/sscg/dokumenta/43.pdf, (accessed 15 April 2018). o Sudski Savjet Crme Gore, ‘Godišnji izvještaj 2012’, Sudski savjet, 2012, http://sudovi.me/podaci/sscg/dokumenta/5109.pdf, (accessed 15 April 2018). o Sudski Savjet Crne Gore, ‘Godišnji izvještaj 2013’, Sudski savjet, 2013, http://sudovi.me/podaci/sscg/dokumenta/5107.pdf, (accessed 15 April 2018). o Sudski Savjet Crne Gore, ‘Godišnji izvještaj 2014’, Sudski savjet, 2014, http://sudovi.me/podaci/sscg/dokumenta/5105.pdf, (accessed 15 April 2018).

311 o Sudski Savjet Crne Gore, ‘Godišnji izvještaj 2015’, Sudski savjet, 2015, http://sudovi.me/podaci/sscg/dokumenta/5103.pdf, (accessed 15 April 2018). o Sudski Savjet Crne Gore, ‘Godišnji izvještaj o radu Sudskog savjeta i ukupnom stanju u sudstvu za 2016. godinu’, Sudski savjet, 2016, http://sudovi.me/podaci/sscg/dokumenta/5136.pdf, (accessed 15 April 2018). o Tužilački savjet Crne Gore, ‘Izvještaj o radu Tužilačkog savjeta za 2013. godinu,’ Tužilački savjet, 2014, http://tuzilastvocg.me/media/files/Izvjestaj%20o%20radu%20Drzavnog%20tuzilastva %20za%202013(1).pdf, (accessed 15 April 2018). o Tužilački savjet Crne Gore, ‘Izvještaj o radu Tužilačkog savjeta za 2014. godinu,’ Tužilački savjet, 2015, http://tuzilastvocg.me/media/files/Izvjestaj%20Tuzilackog%20savjeta%20za%202014 %20god.pdf, (accessed 15 April 2018). o Tužilački savjet Crne Gore, ‘Izvještaj o radu Tužilačkog savjeta i državnog tužilaštva za 2015. godinu,’ Tužilački savjet, 2016, http://tuzilastvocg.me/media/files/izvjestaj%20o%20radu%20vdt%20za%202015- compressed.pdf, (accessed 15 April 2018). o Vlada Crne Gore, Program borbe protiv korupcije i organizovanog kriminala, Podgorica, Vlada Crne Gore, 2005. o Vlada Crne Gore, Akcioni plan za sprovođenje Programa borbe protiv korupcije i organizovanog kriminala, Podgorica, Vlada Crne Gore, 2006. o Vlada Crne Gore, Akcioni plan za implementaciju Reforme sistema pravosuđa 2007- 2012, Podgorica, Vlada Crne Gore, 2007. o Vlada Crne Gore, Prvi izvještaj o relizaciji mjera iz Akcionog plana za sprovođenje Programa borbe protiv korupcije i organizovanog kriminala – 1.9.2006 – 1.5.2007, Podgorica, Vlada Crne Gore, 2007, pp. 48, 69, 70, 89. o Vlada Crne Gore, Akcioni plan za implementaciju preporuka Evropskog partnerstva, Podgorica, Vlada Crne Gore, 2007, pp. 12, 13, 20. o Vlada Crne Gore, ‘Nacionalni program za integraciju (NPI) za period 2008-2012.,’ Vlada Crne Gore, 2008, http://www.mep.gov.me/organizacija/dep/Vaznidokumenti/Nacionalni_program_za_i ntegraciju_Crne_Gore_u_EU, (accessed 17 April 2018).

312 o Vlada Crne Gore, ‘Prvih deset kvartalnih izvještaja Vlade Crne Gore posvećenih ostvarivanju prosecu stabilizacije i pridruživanja: od skupštinske Deklaracije o pridruživanju Evropskoj uniji, juna 2005. godine, do skupštinske Rezolucije o ispunjavanju obaveza Crne Gore u okviru Sporazuma o stabilizaciji i pridruživanju decembra 2007. godine,’ Vlada Crne Gore, 2008, http://www.skupstina.me/index.php/me/pristupanje-eu/parlamentarni-odbor-za- stabilizaciju-i-pridruzivanje/dokumenta, (accessed 17 April 2018). o Vlada Crne Gore, ‘Izvještaj o realizaciji mjera iz Akcionog plana za implementaciju Strategije reforme pravosuđa 2007-2012. godine za prvi polugodišnji period decembar 2007 – jul 2008. godine,’ Vlada Crne Gore, 2008, http://www.pravda.gov.me/biblioteka/izvjestaji?pagerIndex=4, (accessed 15 April 2018). o Vlada Crne Gore, ‘Izvještaj o realizaciji mjera iz Akcionog plana za implementaciju Strategije reforme pravosuđa 2007-2012. godine za prvi polugodišnji period jul 2008 – januar 2009,’ Vlada Crne Gore, 2009, http://www.pravda.gov.me/biblioteka/izvjestaji?pagerIndex=3, (accessed 17 April 2018). o Vlada Crne Gore, ‘Izvještaj o realizaciji mjera iz Akcionog Plana za implementaciju Strategije reforme pravosuđa za 2009. godinu,’ Vlada Crne Gore, 2010, http://www.pravda.gov.me/biblioteka/izvjestaji?pagerIndex=3, (accessed 17 April 2018). o Vlada Crne Gore, Inovirani Akcioni plan 2012-2012 za implementaciju Strategije borbe protiv korupcije i organizovanog kriminala, Podgorica, Vlada Crne Gore, 2011. o Vlada Crne Gore, Akcioni plan praćenja sprovođenja preporuka iz mišljenja Evropske komisije, Podgorica, Vlada Crne Gore, 2011, p. 2. o Vlada Crne Gore, ‘Informacija o realizaciji ključnih aktivnosti iz Akcionog plana sprovođenja preporuka iz mišljenja Evropske komisije¸’ Vlada Crne Gore, 2011, http://www.skupstina.me/index.php/me/pristupanje-eu/parlamentarni-odbor-za- stabilizaciju-i-pridruzivanje/dokumenta, (accessed 17 April 2018). o Vlada Crne Gore, ‘Izvještaj o realizaciji mjera iz Akcionog plana za implementaciju Strategije reforme sistema pravosuđa 2007-2012 za 2010 godinu,’ Vlada Crne Gore, 2011, http://www.pravda.gov.me/biblioteka/izvjestaji?pagerIndex=3, (accessed 17 April 2018).

313 o Vlada Crne Gore, ‘Izvještaj o realizaciji mjera iz Akcionog plana za implementaciju Strategije reforme sistema pravosuđa 2007-2012 za 2011 godinu,’ Vlada Crne Gore, 2012, http://www.pravda.gov.me/biblioteka/izvjestaji?pagerIndex=3, (accessed 17 April 2018). o Vlada Crne Gore, ‘Peti mjesečni izvještaj o realizaciji ključnih aktivnosti iz Akcionog plana sprovođenja preporuka iz mišljenja Evropske komisije,’ Vlada Crne Gore, 2011, http://www.skupstina.me/index.php/me/pristupanje-eu/parlamentarni-odbor-za- stabilizaciju-i-pridruzivanje/dokumenta, (accessed 17 April 2018). o Vlada Crne Gore, Prvi izvještaj o realizaciji mjera iz Akcionog plana za sprovođenje strategije za borbu protiv korupcije i organizovanog kriminala, Podgorica, Vlada Crne Gore, 2011, pp. 14, 20, 21, 39, 43, 47. o Vlada Crne Gore, Drugi izvještaj o realizaciji mjera iz Akcionog Plana za sprovođenje Strategije za borbu protiv korupcije i organizovanog kriminala, Podgorica, Vlada Crne Gore, 2011, p. 13. o Vlada Crne Gore, Treći izvještaj o realizaciji mjera iz Inoviranog Akcionog Plana za sprovođenje Strategije za borbu protiv korupcije i organizovanog kriminala, Podgorica, Vlada Crne Gore, 2012, pp. 14, 98, 104. o Vlada Crne Gore, Četvrti izvještaj o realizaciji mjera iz Inoviranog Akcionog Plana za sprovođenje Strategije za borbu protiv korupcije i organizovanog kriminala, Podgorica, Vlada Crne Gore, 2012, pp. 12, 26, 87, 90, 102, 110. o Vlada Crne Gore, ‘Prilog izvještaju Evropske komisije o napretku Crne Gore za 2012. – za period 1. septembra 2011 – 25. aprila 2012, Podgorica,’ Vlada Crne Gore, 2012, http://www.skupstina.me/index.php/me/pristupanje-eu/parlamentarni-odbor-za- stabilizaciju-i-pridruzivanje/dokumenta, (accessed 17 April 2018). o Vlada Crne Gore, ‘Prilog izvještaju Evropske komisije o napretku Crne Gore za 2012. – za period 25. aprila 2012. – 1. septembra 2012,’ Vlada Crne Gore, 2012, http://www.skupstina.me/index.php/me/pristupanje-eu/parlamentarni-odbor-za- stabilizaciju-i-pridruzivanje/dokumenta, (accessed 17 April 2018). o Vlada Crne Gore, ‘Akcioni plan za Poglavlje 23. pravosuđe i temeljna prava,’ Vlada Crne Gore, 2013, http://www.eu.me/mn/23/23-dokumenti, (accessed 17 April 2018). o Vlada Crne Gore, Peti izvještaj o realizaciji mjera iz Inoviranog Akcionog Plana za sprovođenje Strategije za borbu protiv korupcije i organizovanog kriminala, Podgorica, Vlada Crne Gore, 2013, pp. 13, 104, 106, 111.

314

o Vlada Crne Gore, ‘Akcioni plan za poglavlje 23. pravosuđe i temeljna prava, izvještaj broj 5, Vlada Crne Gore,’ 2014, http://www.gov.me/biblioteka/izvjestaji?pagerIndex=29, (accessed 17 April 2018).

o Vlada Crne Gore, ‘Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj januar – jun 2015,’ Vlada Crne Gore, 2015, http://www.gov.me/biblioteka/izvjestaji?pagerIndex=24, (accessed 17 April 2018).

o Vlada Crne Gore, ‘Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj jul – decembar 2015,’ Vlada Crne Gore, 2016, http://www.gov.me/biblioteka/izvjestaji?pagerIndex=21, (accessed 17 April 2018). o Vlada Crne Gore, ‘Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj – januar – jun 2016,’ Vlada Crne Gore, 2016, http://www.gov.me/biblioteka/izvjestaji?pagerIndex=15, (accessed 17 April 2018).

o Vlada Crne Gore, ‘Akcioni plan za poglavlje 23. pravosuđe i temeljna prava – polugodišnji izvještaj – jul – decembar 2016,’ Vlada Crne Gore, 2017, http://www.eu.me/mn/23/23-dokumenti, (accessed 17 April 2018).

o Vlada Crne Gore, Minstrarstvo vanjskih poslova – Međunarodni odnosi, [website], 2018a, http://www.mvp.gov.me/rubrike/multilateralni-odnosi/, (accessed 16 April 2018).

o Vlada Crne Gore, Minstrarstvo vanjskih poslova – Bilateralni odnosi, [website], 2018b, http://www.mvp.gov.me/rubrike/bilateralni-odnosi, (accessed 16 April 2018).

o Vrhovni Sud Crne Gore, Godišnji izvještaj o radu Centra za edukaciju nosilaca pravosudne funkcije Crne Gore za 2010. godinu, Podgorica, Vrhovni Sud Crne Gore, 2010, p. 22.

7.2 Secondary sources

o AZ Consulting., Tannock: Montenegro ready for EU even before 2025, [website], 2017, http://azconsulting.me/tannock-montenegro-ready-eu-even-2025/, (accessed 14 April 2018).

o Bieber, F., `Building Impossible States? State Building Strategies and EU Membership in the Western Balkans`, Europe-Asia Studies, vol.63, no. 10, 2011, 1783-1800.

o BiEPAG., ‘Western Balkans and the EU: Beyond the Autopilot mode,’ Policy Brief, BiEPAG, 2015.

315 o BiEPAG., ‘EU enlargement in the Western Balkans in a Time of Uncertainty,’ Policy Brief, BiEPAG, 2016. o BiEPAG., ‘The Crisis of Democracy in the Western Balkans. Authoritarism and Stabilitocracy,’ Policy Brief, BiEPAG, 2017. o Börzel, T., ‘Member states responses to Europeanization,’ Journal of Common Market Studies, vol. 40, no. 2, 2002, pp. 193-214. o Börzel, T., ‘When Europeanization Hits Limited Statehood. The Western Balkans as a Test Case for the Transformative Power of Europe,’ The Freie Universität Berlin, no. 30, 2011, pp. 3-15. o Börzel, T.A. and T. Risse, ‘When Europeanisation Meets Diffusion: Exploring New Territory,’ West European Politics, vol. 35, no. 1, 2012, pp. 192-204. o Börzel, T. and T. Risse, From Europeanization to Diffusion, London and New York, Routledge, 2014. o Burchill, S., R. Devetak., A. Linklater, M. Patterson, C. Reus-Smit, and J. True (ed.), Theories of International Relations, New York, Palgrave MacMillan, 2001. o Burnham, P., K.G. Lutz, W. Grant, and Z.L. Henry (ed.), Research Methods in Politics, New York, Palgrave MacMillan, 2008. o Bžežinski, Z., Velika šakovska tabla, Podgorica, CID, 2001. o Carter, E. et al., The Europeanization of National Political Parties – Power and organizational adaptation, 1st ed., London and New York, Routledge, 2007. o Cebelis., Dž., Veto igrači: Kako rade političke institucije, Beograd, Službeni Glasnik, 2016. o CEDEM: Političko javno mnjenje Crne Gore. 2015. (http://www.cedem.me/me/programi/istraivanja-javnog-mnjenja/politiko-javno- mnjenje), (accessed 15 April 2018). o Center for the Study of Democracy, Assessing Russia’s Economic Footprint in the Western Balkans: corruption and state capture risks, CSD, 2018. o Civil Society Forum of the Western Balkans Summit Series, Berlin Process, [website], 2014, http://wb-csf.eu/about/#wbs-berlin-2014, (accessed 16 April 2018).

316 o Delegation of the European Union to Montenegro 2018, The European Union in Montenegro, [website], 2018a, http://www.delmne.ec.europa.eu/code/navigate.php?Id=56, (accessed 14 April 2018). o Delegation of the European Union to Montenegro 2018, European Commission President Jean-Claude Juncker visits Montenegro, [website], 2018b, http://www.delmne.ec.europa.eu/code/navigate.php?Id=3991, (accessed 14 April 2018). o Džankić, J., ‘Reconstructing the Meaning of Being “Montenegrin,”’ Slavic Review, vol. 73, no. 2, 2014a, pp. 356-371. o Džankić, J., ‘Citizenship between the ‘image of the nation’ and the ‘image of politics’: the case of Montenegro,’ Southeast European and Black Sea Studies, vol.14, no. 1, 2014b, p. 44. o Dzihic, V. and A. Wieser, ‘The Crisis of Expectations – Europeanisation as “acquis démocratique“ and its limits. The case of Bosnia-Herzegovina and Serbia,’ L`Europe en formation, no. 349-350, 2008, pp. 81-98. o Đurović, G., Evropska unija Crna Gora: Politika proširenja, Podgorica, Univerzitet Crne Gore – Ekonomski fakultet, 2012. o Đurović, G., Evropska unija i Crna Gora, Podgorica, EU Info Centar, 2016. o Elbasani, A. (ed.), European Integration and Transformation in the Western Balkans: Europeanization or Business as Usual?, New York, Routledge, 2013. o European Conservatives and Reformist Group (ECRG)., European Parliamentarians support reform progress in Montenegro, [website], 2017, http://ecrgroup.eu/european-parliamentarians-support-reform-progress-in- montenegro/, (accessed 14 April 2018). o European Union External Action, Speech by the High Representative/Vice-President Federica Mogherini at the Parliament of Montenegro [website], 2017, https://eeas.europa.eu/headquarters/headquarters-homepage/21734/high- representativevice-president-federica-mogherini-parliament-montenegro_de, (accessed 14 April 2018). o European Western Balkans, ‘Bechev: Russia is playing a “spoiler” in Western Balkans,’ 2017, https://europeanwesternbalkans.com/2017/11/28/ewb-interview-bechev-russia- playing-spoiler-western-balkans/, (accessed 16 April 2018).

317 o Fuše M., Evropska unija pola veka kasnije: stanje i scenariji obnove, Beograd, Službeni glasnik, ISAC, 2009. o Freyburg, T. and S. Richter, ‘National Identity matters: the limited impact of EU political conditionality in the Western Balkans,’ Journal of European Public Policy, vol. 17, no. 2, 2010, pp. 263-276. o Gateva, E., European Union Enlargement Conditionality, New York, Palgrave Macmillan, 2015. o Gerring J., Case Study Research: Principles and Practices, Cambridge, Cambridge University Press, 2006. o Grabbe, H., The EU’s Transformative Power – Europeanization through Conditionality in Central and Eastern Europe, New York, Palgrave Macmillan, 2006. o Hsiu-Fang, H. and S. E. Shannon, ‘Three Approaches to Qualitative Content Analysis,’ SAGE, 2005, pp. 1279-1280. o Keil, S., ‘Europeanization, state-building and democratization in the Western Balkans,’ Nationalities Papers, vol. 41, no. 3, 2013, pp. 343-350. o Keil, S. and Z. Arkan (ed.), The EU and Member States Building: European foreign policy in the Western Balkans, New York, Routledge, 2015. o Kisindžer, H., Svetski poredak, Podgorica, CID, 2015. o Kmezić, M., EU Rule of Law Promotion: Judiciary Reform in the Western Balkans, London and New York, Routledge, 2017. o Ladrech R., ‘Europeanization of Domestic Politics and Institutions: The Case of France,’ Journal of Common Market Studies, vol. 32, no. 1, 1994, pp. 69-88. o Laursen, F (ed.), EU Enlargement – Current Challenges and Strategic Choices, Brussels, P.I.E. Peter Lang, 2013. o Little, R., The balance of power in international relations: metaphors, myths, and models, New York, Cambridge University Press, 2007. o LSEE Research on South Eastern Europe & SEESOX South East European Studies at Oxford, ‘Russia in the Balkans,’ LSEE & SEESOX, 2015, http://www.lse.ac.uk/LSEE- Research-on-South-Eastern-Europe/Assets/Documents/Events/Conferences- Symposia-Programmes-and-Agendas/2015-Report-Russia-in-the-Balkans-merged- document.pdf, (accessed 16 April 2018).

318

o Lynggaard. K., I. Manners and K. Lofgren (ed.), Research Methods in European Union Studies, New York, Palgrave Macmillan, 2015. o MANS (Mreža sa afirmaciju nevladinog sektora), ‘Korupcija ili EU integracije II,’ Podgorica, MANS, 2009, http://www.mans.co.me/korupcija-ili-eu-integracije-2/, (accessed 16 April 2018). o Marsh. D and G. Stoker (ed.), Theory and Methods in Political Science, New York, Palgrave Macmillan, 2010. o Maurer, L. ‘Montenegro regional EU integrational leader,’ b92, 6 September 2008, https://www.b92.net/eng/news/region.php?yyyy=2008&mm=09&dd=06&nav_id=53 276, (accessed 13 April 2018). o Mearsheimer J.J., The Tragedy of Great Power Politics, New York, W.W. Norton & Company, Inc., 2001. o Mendelski, M., ‘The EU’s Pathological Power: The Failure of External Rule of Law Promotion in South Eastern Europe,’ Southeastern Europe 39, 2015, pp. 318-346. o Milosavljević, S. and I. Radosavljević (ed.), Osnovi metodologije političkih nauka, Beograd, Službeni glasnik, 2006. o Ministarstvo vanjski poslova i evropskih integracija, ‘Zapadnobalkanska šestorka +2,’ Diplomarius broj 1, 2013, http://www.mvp.gov.me/Diplomarius/ (accessed 16 April 2018). o Miščević, T., Pridruživanje EvropskojUniji, Beograd, Službeni glasnik, 2009. o Mocht`ak, M., `Democratization and electoral violence in post-communism. A study of Montenegro`, Southeast European and Black Sea Studies, vol. 15, no.1, 2015, p.111. o Morrison, K., Montenegro: A Modern History, London and New York, I.B. Tauris, 2009. o Noutcheva, G., ‘Fake, partial and imposed compliance: the limits of the EU’s normative power in the Western Balkans,’ Journal of European Public Policy, vol. 16, no. 7, 2009, p. 1081. o Noutcheva, G. and S. Aydin-Düzgit, ‘Lost in Europeanisation: The Western Balkans and Turkey,’ West European Politics, vol. 35, no. 1, 2012, pp. 59-75. o Ofe K., Evropa u zamci, Beograd, Službeni glasnik, 2016.

319

o Olsen P. J., ‘The Many Faces of Europeanization,’ JCMS, vol. 40, no. 5, 2002, pp. 921- 952. o Ostrom, E., ‘A Behavioural Approach to the Rational Choice Theory of Collective Action,’ vol. 92, no. 1, 1997, pp. 1-22. o Pridham, G., Designing Democracy: EU enlargement and regime change in post- communist Europe, New York, Palgrave Macmillan, 2005. o Radaelli M. C., ‘Whither Europeanization? Concept stretching and substantive change,’ European Integration online Papers (EIoP), vol. 4, no. 8, 2000, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=302761. o Radeljić, B. (ed.), Europe and the Post-Yugoslav Space. Surrey, Ashgate Publishing Limited, 2013. o Radio Slobodna Evropa, ‘Potpisan ugovor o gradnji autoputa Bar-Boljari,’ 2014, https://www.slobodnaevropa.org/a/26666451.html, (accessed 16 April 2018). o Samardžić, S., Evropska unija: sistem u krizi – sa studijom slučaja o odnosima Srbije i EU, Sremski Karlovci, Novi Sad, Izdavačka knjižarnica Zorana Stojanovića, 2016. o Schimmelfenning, F. and U. Sedelmeier (ed.), The Europeanization of Central and Eastern Europe, Ithaca and London, Cornell University Press, 2005. o Schimmelfenning, F. and U. Sedelmeier, `Governance by conditionality: EU rule transfer to candidate countries of Central and Eastern Europe, Journal of European Public Policy, vol. 11, no. 4, 2011, pp. 661-679. o Sedelmeier, U., `Europeanisation in new member and candidate states`, Living Reviews in European Governance, vol. 6, no. 1, 2011, p. 7. o Tannock, C., ‘2012 progress report on Montenegro,’ Dr Charles Tannock, [webpage], 17 April 2013, http://www.charlestannock.com/speech.asp?id=4730, (accessed 14 April 2018). o Uljarević, D., and V. Vučković., ‘EU28Watch-Montenegro,’ The Institute for European Politics, 2014. o Vachudova, M. A., Europe undivided. Democracy, leverage, and integration after communism, Oxford, Oxford University Press, 2005.

320 o Vijesti, ‘DPS od ličnih donacija uknjižio 654.000 eura,’ 2011, http://www.vijesti.me/vijesti/dps-od-licnih-donacija-uknjizio-654000-eura-20411, (accessed 16 April 2018). o Vučković, V., ‘The Europeanization of Political Parties in Montenegro,’ Romanian Journal of European Affairs, vol. 16, no. 3, 2016a, pp. 36-55. o Vučković, V. and B. Vučinić and V. Đorđević, ‘Partnership for a Secure Future: Montenegrin Road to NATO from 2006 to 2015,’ The Journal of Slavic Military Studies, vol. 29, no. 4, 2016b, pp. 602-625. o Vuković, I., ‘Political dynamics of the post-communist Montenegro: one-party show,’ Democratization, vol. 22, no. 1, 2015, pp. 73-79. o Weingast, A., ‘Political institutions in Rational Choice Perspectives’, in R. Goodin and H. Klingemann (ed.), A New Handbook of Political Science, Oxford, Oxford University Press, 1996, pp. 167-179.

321