Reforming judicial recruitment and training in Bosnia-Herzegovina and Serbia under EU guidance: implementation without institutionalisation?

ABSTRACT

How successful is the EU at institutionalising judicial reforms in accession countries of the Western Balkans? Does its aid and assistance deliver formal compliance and sustainable institutionalisation of new rules and processes? Using a neo-institutionalist approach, we assess the extent to which new EU-supported measures introduced to improve the recruitment and training of judges and public prosecutors in Serbia and Bosnia-Herzegovina are being implemented and institutionalised. We conclude that whilst there is clear evidence of implementation and a widely-held belief in both countries that judicial training and recruitment are improving as a consequence, the institutionalization of new rules and procedures is a far more complex process. It involves continual negotiation between different domestic actors against a backdrop of perpetual threats to undermine new formal rules.

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes

1. Under the new approach chapters dealing with rule of law and fundamental rights are not only prioritised at the start of accession negotiations, but also remain open throughout the negotiation process (European Commission 2011, 5).

2. Whilst both the judicial academy and the HJPC have been the focus of conditionality and the target of assistance and training initiatives, it is important to note that at no point has the EU insisted or directly requested that Serbia or BiH create such bodies.

3. Interview with JAS, Belgrade, 26 February 2015.

4. The EU’s IPA 2012 programme contained a fiche entitled ‘Support to the Rule of Law System’, which included activities related to building curricula at the Judicial Academy.

5. Interview with Judges’ Association (JAS), Belgrade, 26 February 2015.

6. (Venice Commission 2014, 8–9).

7. Interview with Yucom, Skopje, 27 August 2014.

8. For details, see: http://www.vk.sud.rs/sr-lat/o-pravosudnoj-akademiji. Also, interview with JAS, 26 February 2015.

9. Interviews with the Judicial Academy, Belgrade, 2 March 2017.

10. Interview with Association of Prosecutors, Belgrade, 24 February 2015.

11. Interviews with: Centre for Human Rights, Belgrade, 24 February 2015.

12. Interview with Association of Prosecutors, Belgrade, 24 February 2015.

13. Ibid.

14. Ibid.

15. Interviews with: Centre for Human Rights, Belgrade, 24 February 2015; Judicial Academy, Belgrade, 23 February 2015; JAS, Belgrade, 26 February 2015; SEIO, Belgrade, 24 February 2015; Association of Prosecutors, Belgrade, 23 February 2015; Ministry of Justice, Belgrade, 26 February 2015; and the EU delegation office, Belgrade, 27 February 2015.

16. Interviews with: the Judicial Academy, Belgrade, 23 February 2015; JAS, Belgrade, 26 February 2015; SEIO, Belgrade, 24 February 2015; Association of Prosecutors, Belgrade, 23 February 2015; BIRODI, Belgrade, 27 February 2015; and the Centre for Human Rights, 24 February 2015.

17. Interviews with 4 judges (conducted in May / June 2014).

18. Law on HJPC, Consolidated text, art. 1. The HJPC provided a copy of this document.

19. Law on HJPC, art. 17.

20. Law on HJPC, art. 4.

21. TAIEX: Technical Assistance and Information Exchange Instrument of the European Commission. See: https://ec.europa.eu/neighbourhood-enlargement/tenders/taiex_en.

22. Interview with an international official working in Sarajevo, 20 February 2015.

23. Ibid.

24. Indeed, politicians from across the political divide have suggested an increase in the executive and legislative influence in appointing HJPC members.

25. “The Structured Dialogue on Justice is a mechanism of the European Commission to advance structured relations on the rule of law with potential candidate countries. The Structured Dialogue assists Bosnia and Herzegovina to consolidate an independent, effective, efficient and professional judicial system. The first meeting of the EU-BiH Structured Dialogue on Justice was held on 6 and 7 June 2011. See: http://europa.ba/?page_id=553.

26. Book of Rules on Conflicts of Interest for Members of the High Judicial and Prosecutorial Council of Bosnia and Herzegovina, adopted 29 May 2014, art. 2–4. Copy provided by the HJPC.

27. Interview with an EUSR official, 9 February 2015.

28. Interview with an international official working in Sarajevo, 20 February 2015.

29. Interview with an EUSR official, 9 February 2015.

30. Interview with an international official working in Sarajevo, 20 February 2015.

31. Interview with an EUSR official, 9 February 2015.

Additional information

Funding

This work was supported by the EU Commission [FP7 Maxcap Project].