RULE OF LAW IN THE WESTERN BALKANS: EXPLORING THE NEW EU ENLARGEMENT STRATEGY AND NECESSARY STEPS AHEAD April 16-19, 2018 | Alt Madlitz In cooperation with: The Aspen Institute Germany wishes to thank the German Federal Foreign Office for its sponsorship of the Aspen Southeast Europe Program 2018 through the Stability Pact for South Eastern Europe. The mission of the Aspen Institute Germany is to improve the quality of leadership through dialog about the values and ideals essential to meeting the challenges facing organizations and governments at all levels. Over its forty-year history, Aspen Germany has been devoted to advancing values-based leadership – to creating a safe, neutral space in which leaders can meet in order to discuss the complex challenges facing modern societies confidentially and in depth, with respect for differing points of view, in a search for common ground. This reader includes conference papers and proceedings of Aspen Germany’s Western Balkans conference in 2018. The Aspen Institute’s role is limited to that of an organizer and convener. Aspen takes no institutional position on policy issues and has no affiliation with the U.S. or German governments. All statements of fact and expressions of opinion contained in all Aspen publications are the sole responsibility of the author or authors. For further information about the Aspen Institute Germany, please write to Aspen Institute Deutschland e.V. Friedrichstraße 60 10117 Berlin Germany or call at +49 30 80 48 90 0. Visit us at www.aspeninstitute.de www.facebook.com/AspenDeutschland www.twitter.com/AspenGermany Copyright © 2018 by The Aspen Institute Deutschland e.V. All rights reserved. This report may not be reproduced in whole or in part, in any form (beyond that copying permitted by Sections 107 and 108 of the U.S. Copyright Law and excerpts by reviewers for the public press), without the express, prior, written consent of the publisher. TABLE OF CONTENTS AGENDA 04 LIST OF PARTICIPANTS 07 PARTICIPANT BIOGRAPHIES 08 SESSION I: IMPLICATIONS OF THE NEW EU ENLARGEMENT STRATEGY FOR RULE OF LAW REFORMS IN THE WESTERN BALKANS 21 1. Andi Hoxhaj The New EU Rule of Law Initiative for the Western Balkans 21 SESSION II: HOW TO ESTABLISH AN INDEPENDENT JUDICIARY IN THE REGION 27 2. Arolda Elbasani International Promotion of Rule of Law: Facing Connections between Patronage, Crime, and Judiciary Corruption 28 3. Tamara Takacs Rule of Law and the Independence of the Judiciary in the Western Balkan Countries 35 SESSION III: DEPOLITICIZATION AND PROFESSIONALIZATION OF PUBLIC INSTITUTIONS 39 4. Martin Mendelski Good Governance Promotion in the Western Balkans: An Empirical Analysis of the De-politicization and Fragmentation of the State 39 5. Stefan Pürner Depoliticization and Professionalization of Public Institutions: How Should it (Not) be Done? 46 SESSION IV: FIGHTING CORRUPTION AND ORGANISED CRIME 52 6. Senada Šelo-Šabić Fundamentals First: Operationalizing the Fight Against Corruption in the EU Accession of the Western Balkan Countries 52 7. Nieves Zúñiga The New EU Enlargement Strategy and Anti-Corruption Measures in the Western Balkans 56 SESSION V: FUNDAMENTAL RIGHTS AND EQUAL ECONOMIC OPPORTUNITY 61 8. Simonida Kacarska Guaranteeing Fundamental Rights in the Western Balkans 61 LIST OF ABBREVIATIONS 66 AGENDA Accommodation and conference venue: Gut Klostermühle, Mühlenstr. 11, 15518 Madlitz Wilmersdorf (Alt Madlitz) Monday, April 16, 2018 Arrival of Participants during the Day 20:00 Welcome Dinner at Refektorium Tuesday, April 17, 2018 09:00 – 09:30 Welcoming Remarks Rüdiger Lentz, Executive Director, Aspen Institute Germany Christian Hellbach, Special Envoy for South-Eastern Europe, Turkey and the EFTA States, Federal Foreign Office 09:30 – 11:00 Session I: Implications of the New Enlargement Strategy for Rule of Law Reforms in the Western Balkans On February 6, 2018, the European Commission published its new enlargement strategy for the Western Balkans. By providing a potential time frame for Serbia and Montenegro to join the EU by 2025 and the next steps to take by Albania, Bosnia and Herzegovina, Kosovo, and Macedonia, it tries to create further momentum for reforms in the region. What does the new strategy entail regarding the rule of law? What can be expected from the announced flagship initiative to strengthen the rule of law in the Western Balkans? What should this initiative focus on? What does this mean for the reform processes in this field? Are there any promising new approaches? How should the EU further develop its efforts? Introduction: Andi Hoxhaj, The New EU Rule of Law Initiative for the Western Balkans Moderation: Rüdiger Lentz 11:00 – 11:30 Coffee break 11:30 – 13:00 Session II: How to Establish an Independent Judiciary in the Region The establishment of an independent judiciary has been one of the key reform priorities in the EU accession processes of the Western Balkan countries. However, legal systems continue to be influenced by corruption and politicization, thereby impeding their independent functioning. How can justice systems be reformed successfully? Can the Albanian reform serve as a model for the region? What are the shortcomings in the Albanian model? How can corruption and political interference be curbed sustainably? How can vetting procedures be depoliticized and a culture of selective justice and impunity for high- level crimes be ended? Does the new enlargement strategy provide any answers? Introduction: Arolda Elbasani, International Promotion of Rule of Law: Facing Connections between Patronage, Crime and Judiciary Corruption Tamara Takacs, Rule of Law and the Independence of the Judiciary in the Western Balkan Countries Moderation: Ana Trišić-Babić Rule of Law in the Western Balkans: ASPEN 5 Exploring the New EU Enlargement Strategy and Necessary Steps Ahead POLICY PROGRAM 13:00 – 14:00 Lunch at Finckenlounge (Breakfast Hall) 14:15 Departure to Berlin 16:00 – 17:00 Meeting with Dr. Joachim Bertele, Deputy Head of Division “Foreign and Security Policy”, German Federal Chancellery 17:30 – 18:30 Meeting with Dr. Christoph Hübner, Head of Division “Europe”, German Federal Ministry of the Interior 19:00 Reception and Dinner with Members of the German Bundestag Venue: Altes Zollhaus, Carl-Herz-Ufer 30, 10961 Berlin Confirmed MPs: Renata Alt, FDP Nikolas Löbel, CDU/CSU Thorsten Frei, CDU/CSU Frank Müller-Rosentritt, FDP Thomas Hacker, FDP Andreas Nick, CDU/CSU Metin Hakverdi, SPD Dietmar Nietan, SPD Josip Juratovic. SPD Manuel Sarrazin, Die Grünen Gunther Krichbaum, CDU/CSU Katrin Staffler, CDU/CSU Michael Kuffer, CDU/CSU Wednesday, April 18, 2018 09:30 – 11:30 Session III: Depoliticization and Professionalization of Public Institutions One of the major challenges in the region continues to be the politicization as well as the lack of transparency and professionalization of public institutions. How can they be enabled to serve the benefits of the citizens rather than patronage networks? How can patronage networks be dismantled more efficiently? How can the independence of public institutions from political interference be increased? How can institutions that should be independent, such as Ombudsmen, Anti-Corruption Agencies, Electoral Commissions, etc., be protected from political control? How can these institutions be professionalized, and merit-based recruitment be ensured? Why have previous efforts not been successful and how can this be changed? How can the use of state resources for personal or party-political benefits be ended? Introduction: Martin Mendelski, Good Governance Promotion in the Western Balkans: An Empirical Analysis of the De-politicization and Fragmentation of the State Stefan Pürner, Depoliticization and Professionalization of Public Institutions: How Should it (Not) be Done? Moderation: Ramadan Ilazi 11:30 – 12:00 Coffee break 12:00 – 13:00 Discussion with Lidija Prokic, Regional Advisor for Southeast Europe at Transparency International on Transparency International’s work in the Western Balkans ASPEN Rule of Law in the Western Balkans: 6 POLICY PROGRAM Exploring the New EU Enlargement Strategy and Necessary Steps Ahead 13:00 – 14:30 Lunch at Finckenlounge (Breakfast Hall) 14:30 – 16:30 Session IV: Fighting Corruption and Organized Crime The EU Commission’s new enlargement strategy notes that “countries show clear elements of state capture, including links with organized crime and corruption at all levels of government and administration, as well as a strong entanglement of public and private interests.” To establish a functioning rule of law and end the undermining of the legal, economic, and political systems in the Western Balkans for personal interests, it is essential to fight corruption and dismantle criminal networks more efficiently. Does the new enlargement strategy provide any promising new approaches? Is there a need for completely new approaches, especially when it comes to fighting high-level corruption? What could new approaches look like? Should controversial models of transitional justice (e.g. plea bargaining, deferred prosecution agreements, immunity programs) be considered to more effectively dismantle existing informal power structures that undermine the functioning of the systems? What could be other new methods to fight high-level corruption more efficiently? Introduction: Senada Šelo-Šabić, Fundamentals First: Operationalizing the Fight Against Corruption in the EU Aaccession of the Western Balkan Countries Nieves Zúñiga, The New EU Enlargement Strategy and Anti-Corruption