RULE OF LAW REFORMS IN THE WESTERN BALKANS Valeska Esch Olga van Zijverden (eds.) In cooperation with: The Aspen Institute Germany wishes to thank the German Federal Foreign Office for its sponsorship of the “Aspen Regional Dialogue Western Balkans 2018“ through the Stability Pact for South Eastern Europe. The mission of the Aspen Institute Germany is to im- prove the quality of leadership through dialog about the values and ideals essential to meeting the challenges fac- ing organizations and governments at all levels. Over its forty-five-year history, Aspen Germany has been de- voted 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 socie- ties confidentially and in depth, with respect for differing points of view, in a search for common ground. This publication includes conference papers and pro- ceedings of Aspen Germany’s Western Balkans confer- ence in 2018. The Aspen Institute’s role is limited to that of an organ- izer 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 expres- sions 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. Responsible editor: Valeska Esch Aspen Institute Deutschland e.V. Friedrichstraße 60 10117 Berlin Germany (printed by A8 Druck- und Medienservice, Berlin) TABLE OF CONTENTS FOREWORD BY AMBASSADOR DR. CHRISTIAN HELLBACH 05 INTRODUCTION 07 SUMMARY AND RECOMMENDATIONS 09 SYNOPSIS OF THE SOUTHEAST EUROPE PROGRAM 2018 11 CONFERENCE I: RULE OF LAW IN THE WESTERN BALKANS: EXPLORING THE NEW EU ENLARGEMENT STRATEGY AND NECESSARY STEPS AHEAD 15 AGENDA AND PARTICIPANTS 16 CONFERENCE REPORT 20 SESSION I: IMPLICATIONS OF THE NEW EU ENLARGEMENT STRATEGY FOR RULE OF LAW REFORMS IN THE WESTERN BALKANS 25 1. Andi Hoxhaj The New EU Rule of Law Initiative for the Western Balkans 25 SESSION II: HOW TO ESTABLISH AN INDEPENDENT JUDICIARY IN THE REGION 32 2. Arolda Elbasani International Promotion of Rule of Law: Facing Connections between Patronage, Crime, and Judiciary Corruption 32 3. Tamara Takacs Rule of Law and the Independence of the Judiciary in the Western Balkan Countries 38 SESSION III: DEPOLITICIZATION AND PROFESSIONALIZATION OF PUBLIC INSTITUTIONS 42 4. Martin Mendelski Good Governance Promotion in the Western Balkans: An Empirical Analysis of the De-politicization and Fragmentation of the State 42 5. Stefan Pürner Depoliticization and Professionalization of Public Institutions: How Should it (Not) be Done? 48 SESSION IV: FIGHTING CORRUPTION AND ORGANISED CRIME 54 6. Senada Šelo-Šabić Fundamentals First: Operationalizing the Fight Against Corruption in the EU Accession of the Western Balkan Countries 54 7. Nieves Zúñiga The New EU Enlargement Strategy and Anti-Corruption Measures in the Western Balkans 58 SESSION V: FUNDAMENTAL RIGHTS AND EQUAL ECONOMIC OPPORTUNITY 63 8. Simonida Kacarska Guaranteeing Fundamental Rights in the Western Balkans 63 TABLE OF CONTENTS CONFERENCE II: CURBING POLITICAL INFLUENCE ON INDEPENDENT INSTITUTIONS IN THE WESTERN BALKANS 69 AGENDA AND PARTICIPANTS 70 CONFERENCE REPORT 75 SESSION I: CURRENT PERSPECTIVES ON POLITICAL INTERFERENCE IN DIFFERENT SECTORS OF SOCIETY IN THE WESTERN BALKANS 81 1. Jelena Budak: Rule of Law and Good Governance in Focus: Brief on Croatia After Five Years of EU Membership 81 SESSION II: HOW TO STRENGHTEN GOVERNANCE AT ALL LEVELS THROUGH PUBLIC ADMINISTRATION REFORM: TRANSPARENCY, EFFICIENCY, RESPONSIVENESS, QUALITY 85 2. Ramadan Ilazi Challenges and Opportunities of the Public Administration Reform Process in the Western Balkans: Good Governance, Democratic Systems, and Public Service Delivery 85 SESSION III: STRENGHTENING THE INDEPENDENCE OF THE MEDIA AND FREEDOM OF SPEECH 93 3. Marko Milosavljević Curbing Political Influence on Independent Institutions in the Western Balkans 93 SESSION IV: POLITICAL INFLUENCE ON THE JUDICIARY, OMBUDSMEN, AND ANTI-CORRUPTION AGENCIES 97 4. Sotiraq Hroni Curbing Political Influence on Anti-Corruption Agencies: The Case of Albania 97 5. Vujo Ilić Turning the Tide: Political Influence and Independent Institutions in Serbia 103 SESSION V: DISENTANGLING BUSINESS AND POLITICS: HOW TO STRENGTHEN THE PRIVATE SECTOR 6. Blerim Reka De-politicized Economy Through Post-Corruptive Transformation 110 SOUTHEAST EUROPE WORKING GROUP 2018: TAKING STOCK OF THE EU ENLARGEMENT STRATEGY AND ITS IMPACT ON REFORM PROCESSES IN THE WESTERN BALKANS 113 AGENDA AND PARTICIPANTS 114 CONFERENCE REPORT 117 LIST OF ABBREVIATIONS 120 ABOUT ASPEN 122 FOREWORD The countries in the Western Balkans, Albania, Bosnia and Herzegovina, FYROM, Kosovo, Montenegro and Serbia, can become full members of the European Union once they satisfy the Copenhagen criteria – this commitment, which continues to govern the European Union’s policies towards the Western Balkans, was solemnly reaffirmed at the Sofia Summit of the EU and the countries of the Western Balkans in May 2018. With the Sofia Priority Agenda, which builds on the EU Commission’s Strategy for the Western Balkans published in February, the EU identified a list of measures to accelerate reforms in key areas and to improve the living conditions of people on the ground. Support for sustainable democratic and economic transformation is, ultimately, Europe’s response to the increasing importance of the Western Balkans region for its security and strategic foreign policy interests. This is the backdrop against which the Aspen Institute Germany addressed, in its Western Balkans Program 2018, key issues regarding transformation under the specific circumstances prevailing in the region: rule of law, justice reform, the importance of independent institutions, media freedom and fight against corruption and organized crime. Aspen events have offered high-ranking representatives from the Western Balkans and from the EU space to exchange views and best practices. Moreover, they have helped to forge a common understanding of the challenges ahead. In 2018, the Western Balkans featured more prominently on the European Union’s agenda than in previous years and we saw Skopje and Athens signing the Prespa-Agreement – an outstanding example of skillful diplomacy and successful conflict resolution which sends a strong signal of encouragement to the region and beyond. But we also saw other bilateral conflicts deepening, we saw economic hardship, migration and, last but not least, unmistakable symptoms of state capture. There is no room for complacency, the stakes remain high. In 2019, the EU will have to take a decision on the start of accession negotiations with Albania and the Former Yugoslav Republic of Macedonia based on the country reports of the European Commission. Progress of both candidate countries in the field of rule of law and fight against organized crime and corruption will be as important as strategic vision and sense of purpose on the side of the European Union. I thank the Aspen Institute for its contribution to the dialogue between Germany, the EU and the Western Balkans and look forward to new inspiring meetings and discussions. Dr. Christian Hellbach, Ambassador Director for South-Eastern Europe, Turkey and the EFTA States Federal Foreign Office INTRODUCTION Dear friends of the Aspen Institute Germany, 2018 has been a year in which the European Union and its member states have been faced with numerous major challenges posed by global changes and an ever more difficult process of ensuring EU unity. US President Trump’s disregard of the rules-based multilateral world order and his unilateral “America First” policy oppose the EU’s interests in many areas, from the Paris climate agreement and the Iran nuclear deal to a rules-based world order and free trade. This has on the one hand sparked debate in Europe on the EU’s defense capabilities and role in the world, but his emphasis on the national interest in international affairs also benefitted nationalist narratives both in and outside the EU. Authoritarian leaders, far- right and anti-EU parties are on the rise, questioning the very idea of European integration, and the upcoming European Parliament elections will be of utmost importance for the future course and functionality of the EU, not to mention the uncertain impact of Brexit. At the same time, many considered 2018 a window of opportunity for the Western Balkans’ EU integration. And indeed, the past year has seen renewed efforts on the side of the EU to reconfirm and strengthen its commitment to the region. In February 2018, the European Commission reemphasized the membership perspective for all Western Balkan countries in its new enlargement strategy “A credible enlargement perspective for and enhanced EU engagement with the Western Balkans” – a document that has been highly welcomed by many observers for its blunt assessment of remaining shortcom- ings in the region. It clearly emphasizes the need to increase reform efforts in Western Balkan countries, in particular in the field of rule of law and good governance, and highlights the need for a serious commitment of regional governments