European Western Balkans

Serbia’s Chapters 23 and 24: Authorities care for the form, not the essence of reforms

National Assembly of Serbia; Photo: Wikimedia Commons

BELGRADE – Apart from the long delay in the amendment of the Constitution, Serbian state authorities “shirk” their duties in numerous domains, the experts in  Chapters 23 and 24 in the EU accession talks of Serbia agree. These chapters are considered to be the  “spine” of the rule of law.

Speaking about the difficulties which slow down the “European path” of Serbia, the interlocutors of the EWB, underline, among other things, the insufficient and incoherent implementation of laws regarding the protection of the “vulnerable” groups, political interference in the judiciary, the strong pressure that the Serbian officials put on the media outlets which tend to criticise the Government and President. Having in mind a number of shortcomings, no one expects that our country will get high “marks” in the semi-annual Report by the EU Commission, on the state of play regarding Chapters 23 and 24, which should be published in November.

Lack of the genuine progress

Sonja Stojanović Gajić, Director of the Belgrade Centre for Security Policy (BCBP), states for EWB that the main obstacle to making progress in the Chapters 23 and 24 is “the lack of the political will to implement the rule of law in Serbia, as well as the inadequate support for the EU integration”.

“The formal progress is made when it comes to the number of the adopted laws, and the number of persons arrested for the criminal offences, which are of the particular importance for the EU member states. There is no genuine progress as there is no will to stop the political interference in the judiciary, police and media reporting, as well as to bring the senior politicians and the people who are close to them, charged with corruption and organized crime, to justice. More and more often we witness the practice by which the harmonisation of the legislation with the EU laws is used to increase the dicretion in the political decision-making,  to decrease the transparency and the control of the institutions that are important for the rule of law, “by the back door”. One of the major “battles” in this domains are the amandments.

of the Constitution, which still  have not provided the sufficient guarantees that the executive branch of government will not interfere in the judiciary”, our interlocutor explains.

As one of the illustrations of  the political interference in the judiciary, Stojanovic Gajic highlights the amendments of the Law on Police, made last year “just one year after the new law had been adopted”, which introduced the exceptions to the principle of employment and promotion regarding the job opportunities, and enabled the Minister to make the decisions “by skipping the regular procedures”.

Suggestion of further delays

Tanja Ignjatović, Programme Coordinator of the Autonomous Women’s Center, reminds that Chapter 23 covers “three big issues – judiciary, fight against corruption and fundamental rights”. She thinks that there are numerous problems regarding the implementation of the measures and activities envisioned by the Action Plan.

“The most of the measures focus on the formal aspects – what should be adopted, instead of focusing on the implementation of the laws and strategies, i.e. on improving the status of the citizens, particularly of the groups which are particularly affected by the certain reforms. The deadlines for carrying out the activities are not met, there are neither reports nor clear indicators of the effects of such measures. For example, the amendements of the Law on the Prohibition of Discimination or of the Law on Gender Equality, which should have been implemented in 2016, have not been completed, or the amendements of the Criminal Procedure Code. In addition, the National Strategy for Victims’ Rights has not been adopted yet. The new deadline is 2020. The revised Action Plan for the period 2019-2021 failed to tackle the key challenges and has not been finished yet, which suggests the further delays in the implementation of the envisioned activities”, Ignjatović points out.

Our interlocutor states that the serious problem is the adoptation of law without debate – hundreds of amendments by which the discussion in the Parliament is blocked, the lower level of monitoring and control by the National Assembly over the executive branch of government, ignoring the work of the independent regulatory bodies.

“There is less and less space for the functioning of the media, trade unions and civil society, which is done by the denunciation of each critical voice, by constant attacks which jeopardise the safety of  both journalists and of the human rights activists, or by “producing” pro-government non-governmental organisations. The condition of the “most vulnerable” social groups has not been improved. If it were to be adopted, the new Draft would limit the approach to the information of public importance. Futhermore, the regulations regarding the protection of the personal data are not adequate. There is no political will for the genuine fight against corruption, for the suitable improvement of many laws, and particularly for the implementation of them. Almost half of the measures which were envisioned originally have not been implemented and the common forms of corruption are still present”, Ignjatović remarks.

Hyperproduction of laws

Jovanka Todorović, Activist of the Gayten LGBT organisation, says that concerning the human rights of the LGBTIQ persons, which is one of the issues covered by  Chapter 23, the greatest problem is the “insufficient implementation of the laws that protect these persons from discrimination”.

“During the EU path of Serbia the laws have been hyperproduced,  so nowadays there are numerous laws – more than 20, which protect the equality of the LGBTIQ persons, but they are not implemented adequately. As one the conditions for  the EU accession regarding the judiciary, Serbia was obliged, among other things, to supplement the Criminal Procedure Code with the Article “hate crime”, i.e. to introduce the obligatory aggravating circumstance for the criminal offences regarded as “hate crimes”. For as many as seven years we had been waiting for the first court ruling, by which the court made the reference to the Article 54a, i.e. hate crime against the person of the same sexual orientation. Speaking about the laws, we are still waiting for two important laws by which the same-sex marriages will be recognised to be adopted, as well as for the adoption of the  law which will enable the legal recognition of the gender. These are two huge legal gaps”, the interlocutor of EWB states.

Todorović explains that intersex persons are  recognised neither by any law, nor by any strategy – neither at the national, nor at the local level.

“The term intersex is the generic term used for the persons born with physical or biological sexual characteristics, which do not match the typical definitions of the male, i.e. of  the female body – they do not meet the expectations from the male or female sexual characteristics. As a result, intersex persons cannot be classified by using the medical criteria, into the persons with the typical male or into the persons with the typical female sexual characteristics”, she remarks.

The interlocutor of EWB considers that there is an impression that in some domains the things are “moving backward”, such as, Law on the Amendments and Supplements on the Law on Civil Records, adopted last year. By this law the transgender persons are mentioned for the first time, “but in a manner that directly links the alternation of the personal documents, in accord with the desirable gender, to the surgical operations, which is directly opposite to the ruling by the European Court of Human Rights, which states that such conditioning is the violation of the fundamental human rights”.

Media as leverage of state power

The expression of media freedom refers to the greatest extent to Chapter 23, although such an issue is partly covered by Chapter 10, as well. Nedim Sejdinović, seasoned journalist and media analyst, thinks that the problems in this domain are directly linked to the problems with which Serbia is generally faced up – “in extremely severe form” – regarding the rule of law “so it is illusory to expect that any kind of strategic documents or amendmends to the laws can improve the situation in the domain of media freedom and media professionalism”.

“The state authorities in Serbia at a quick pace completes the process of the destruction of the institutional order, which completely surrenders to the absolute power of one man and one political party”. On the other hand, media outlets in Serbia is one of the main leverages for keeping this absolute power, and, in a nutshell – media outlets which are in the service of the government are being awarded n different ways, mainly by the money of citizens of Serbia, whereas the media which do their job in a professional manner  and meet the professional standards are completely discriminated”, he underlines.

Sejdinović claims that even if the excellent laws were to be adopted, which should be the result of the upcoming media strategy, they would have no effect, nor they could guarantee the improvement of the situation. He reminds of the fact that the international “stakeholders” and experts  assessed the current media laws in a mainly positive way, “and, now, five years later we have the serious problems regarding the media market, media freedoms and media pluralism”.

“In spite of the numerous efforts of the journalists’ and media associations, and of the engagement of the international organisations, the situation in this domain is deteriorating on a daily basis. The Serbian officials continue to denunciate, humiliate, and belittle journalists and media workers, declaring them state enemies or “foreign mercenaries”, thereby seriously jeopardising their safety. In addition, Serbian state officials misuse the different types of inspection oversight for putting pressure on the media. As a result, some media outlets were shut down, and some are on the brink of closing down. The representatives of the rulling parties often file suits against the media and journalists, and the court rulings are not in line with the Serbian laws or with the practise  of the European Court for Human Rights, which state that the public officials are obliged to tolerate the pieces of criticism”, the interlocutor of EWB says.

Sejdinović underlines that, on the other hand, the professional journalists do not have the adequate legal protection, although they are exposed to threats and various types of safety risks, whereas the pro-government tabloids disobey the principles of the Code of Serbian Journalists on a daily basis, in the most brutal way, in spite of the fact that such media outlets are to a great extent financed by the public money.

“These media spread the hate speech, call by derogatory names and insult  people who criticise the state officials, as well as the people from the minority ethnic and religious groups. The work of the Regulatory Authority of Electronic Media (REM) has been made useless by the government. As a result, there is chaos and anarchy when it comes to the work of the electronic media outlets. The media outlets with the national coverage have turned into the means of the pro-government propaganda, and the TV shows of extremely low quality are dominant. The government gives huge amounts of money from the state budget (public co-financing, public procurements, promotions, advertising, sponsorship, contracts about the business-technical cooperation) for the pro-government media, whereas the media which criticise the government have an extremely limited access to the public money, and it is often the case that they do not have an access to this money at all, which leads to the serious disbalance in the media market and to the discrimination of the “disobedient”media”, our interlocutor concludes.

Lack of legal certainty

Sena Marić, Programme Manager and Senior Researcher at the Center for European Policies, says for EWB that Chapter 24 (justice, freedom and safety), is peculiar since the EU legislation is being developed at fastest pace, due to the importance of the security issues, so Serbia, at the same time has to harmonise its laws with the current regulations, and “to follow and harmonise with the new ones”.

“This fact, to a certain extent, makes the work of the state authorities regarding the harmonisation more difficult, and the public officials use exactly this point as an argument when the civil society asks them why the progress is not greater”. In fact, at the meetings of the Ministry of Interior, which coordinates the negotiations in this Chapter, with the representatives of the civil society, gathered in the Convent, one of the key remarks refers to the fact that it is impossible to find out what are the effects of the trainings, improved capacities of the institutions, police cooperation with the EU member states, etc“, she states.

Our interlocutor underlines that the monitoring of the progress in this Chapter implies only the monitoring of the activities, without the discussions about the effects of these activities, and, generally speaking, one of the greatest problems, which is also present in other domains, is the insufficient or incoherent implementation of the current laws, and the lack of legal certainty.

“Specifically, when it comes to migration and asylum policy, non-governmental organisations which work “in the field” for many years have been pointed out to the fact that our country does not have the complete track record who is present in its territory, since several thousand migrants present in Serbia have neither been registered nor there is any legal action implemented – asylum process, removal procedure, deportation, etc. The majority of them is deprived of the chance to enter the asylum procedure, either directly or indirectly. Therefore, the fundamental articles in the Law on Asylum and complementary regulations are not implemented. Any further harmonisation with the new EU regulations, which are mostly more complex than the current ones, does not have much sense as long as the current laws are not implemented“, Marić remarks.

This article has been published in the context of the project “Support for independent reporting on European integrations of Serbia with a special emphasis on Chapters 23 and 24”, which is being implemented in cooperation with EUROPEUM Institute for European Policy and with the support of the Ministry of Foreign Affairs of the Czech Republic. The views expressed in this article do not represent those of the EUROPEUM Institute or those of the Ministry of Foreign Affairs of the Czech Republic.

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