European Western Balkans

Transparency International: Ineffective judiciary helps to maintain state capture in the Western Balkans

Corruption; Photo: Wikimedia Commons / Ashwath Hegde

BERLIN – The capture of the state in the Western Balkans leads to the eroding public trust in government institutions and is enriching politicians at the severe cost of ordinary citizens, are some of the main conclusions of the Transparency International’s publication entitled “Examining state capture: Undue Influence on Law-Making and the Judiciary in the Western Balkans and Turkey”.

Transparency International published a report examining two key enabling factors of state capture in the Western Balkans and Turkey: impunity for high-level corruption and tailor-made laws. The report also argues that the judiciary does not handle corruption-related problems effectively, and concludes with a list of recommendations against state capture.

“Based on data on high-level corruption cases and tailor-made laws collected by our chapters and partners in the countries, our report identifies shortcomings both in the judiciary and in law-making that reflect the characteristics of state capture in the region”, reads the report.

When it comes to high-level corruption cases, the report demonstrates that the power of political parties and the loyalty they command are key ingredients in the success of patronage and clienteles networks. The prosecution of such cases often depends on the influence of the ruling parties over the judiciary, and results in biased judges and prosecutors and weak investigations, and tailor-made laws which serve only the interests of a particular group.

“The report identifies three types of tailor-made laws based on their purpose: laws to control part of a sector or industry, laws to reduce the capacity of institutions to exercise checks and balances, and laws to ensure that positions in public office and justice systems are held by people who enable corruption”, states the publication.

According to the report, the key enablers of state capture are impunity for grand corruption and the legalisation of the capture. Political control of the judiciary is instrumental for the first enabler, while the creation of tailor-made laws is crucial for the second one. The first obstacle to the proper prosecution of corruption involving high-level public officials is said to be the way the crime is recognised, or not, in the criminal code and relevant legislation.

“For example, in Serbia, mixing criminal offences that may be committed in connection to the corruption with various types of economic crime offences, makes it difficult to monitor achievements in the prosecution of corruption and might result in the inconsistent treatment of corruption offences. In Serbia, it is not possible at the moment to prosecute certain persons, such as someone who bribes an MP to vote for a certain proposal”, reads the report.

On the other hand, in certain countries, legal limitations come from the lack of harmonisation between criminal legislation in different jurisdictions, which leads to the problems with inconsistency, duplication and double standards.

“This is the case in Bosnia and Herzegovina, where, despite recommendations from the Organisation for Security and Co-operation in Europe (OSCE) to harmonise the relevant procedural criminal legislation across all levels of government in the country the executive and legislative authorities have demonstrated no willingness to do so”, the authors argue.

Political influence on the judiciary, obstacles associated with the prosecutor and lengthy court proceedings are considered to be some of the most common problems in the Western Balkans. Lack of or weak regulation on lobbying are listed as another common issue concerning state capture and across the region.

“The general purpose of laws on lobbying is to provide transparency and protect the public interest. The countries in the study that have laws on lobbying are Serbia (in effect since August 2019), North Macedonia (since 2011) and Montenegro (since 2014). The absence of lobbying regulations in countries such as Bosnia and Herzegovina, Albania, Kosovo and Turkey implies that MPs have no obligation to report contacts with people lobbying for the adoption of a particular law or regulation”, reads the report.

According to the authors of the report, the Western Balkan countries and Turkey must develop and implement new priorities for reform, which should focus on both the technical shortcomings and the political dynamics that enable them, in order to address state capture. The report includes a list of recommendations addressed to EU and national decision-makers and local officials and citizens to tackle state capture, political parties, the performance of the judiciary and law-making and the performance of the parliament.

“Recommendations against state capture are to introduce indicators to increase understanding of political practices and structures that undermine independent and accountable judiciaries and parliaments, to link EU membership conditionality to the reform process itself, to incentivise the adoption of mechanisms for implementing anti-corruption and anti-undue influence legislation”, reads the report.

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