THE CHALLENGES OF EXTERNAL DRIVEN REFORMS

Cristian GhineaCristian GhineaLaura StefanLaura Stefan

BrusselsBrussels, , November 2011November 2011

THE CHALLENGES OF EXTERNAL DRIVEN REFORMS

Cristian GhineaCristian GhineaLaura StefanLaura Stefan

BrusselsBrussels, , November 2011November 2011

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- Anticorruption and reform of the judiciary policies in 7 countries: Bulgaria, Romania, Croatia, Serbia, Macedonia, Moldova, Ukraine

- Not a snapshot but a historic overview of developments in these countries

- Instruments: desk-research and interviews

 

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Methodology

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- Specialized anticorruption institutions

- Immunities

- Confiscation

- Declarations of assets and interests

- Judicial independence and accountability

 

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Areas for analysis

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- Specialization is a trend in old member states also

- Prosecution – Romania, Croatia, Macedonia, Serbia, and Moldova

- Police - Romania, Croatia, Macedonia, and Moldova

- Prevention and policy - Bulgaria, Romania, Moldova, Croatia, Macedonia, and Serbia

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Findings - Specialized anticorruption institutions

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- From a freedom of speech immunity to a mechanism to block criminal investigations

- Immunity becomes relevant once high-level investigations commence

- European Commission reccomendation - functional immunity

- Procedures are old and often bodies which should lift immunities act as a parallel justice system

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Findings - Immunities

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- Reliable statistics are lacking in most countries, as confiscation is not a central element of the combatting policy

- Framework decision on extended confiscation could improve obsolete legal systems on confiscation

- Challenges – constitutional and in the mindset of those who should apply the new provisions

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Findings - Confiscation

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- Most countries have introduced these systems in an attempt to spot unjustified enrichment and conflict of interests

- Transparency is key

- Control mechanisms able to generate dissuasive sanctions are difficult to introduce

 

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Findings – Declarations of assets and interests

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- Expectations were higher than the results

- Independence was seen as more important than accountability

- Independence was given before any lustration of the judiciary

- Importance of balancing appointments to key positions in the judiciary

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Findings - Judiciary self-governing bodies

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- EU positions on reform of the judiciary and anticorruption have evolved in time

- There is limitted acquis in these areas

- External pressure works, but internal support matters

- Pre-accession period is the window of opportunity to implement difficult reforms

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Findings

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- Judiciary and anticorruption should be put on the negociation table early in the process

- Need to work more with politicians during the pre-accession period

- Need to empower civil society to perform watch-dog activities through financing of projects which are “unfriendly” to the governments

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Findings

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- Post-accession the willingness to reform decreases. CVM has counter-balanced these tendencies

- Possible link with funds or Schengen

- Possible application to Member States benefiting from financial aid

- Recent efforts to set-up a monitoring mechanism within Member States will help in raising the standards

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Findings