Editorial: Rule of Law Conditionality in the Stabilization and Association Agreement between Kosovo and the EU
The Stabilization and Association Agreement (SAA) is a contractual relationship between the European Union and countries that pursue EU membership, in the framework of the Stabilization and Association Process. For more than a decade and a half, stabilization and association agreements have played a very important role in the Balkans, by enabling these countries a European perspective. In order for them to be able to sign and then implement the SAA, they must show a serious commitment towards undertaking democratic reforms, respect human and minority rights, guarantee freedom of expression, and hold free and fair elections. These countries should also ensure the implementation of economic reforms and commit to increase regional cooperation. Therefore, with the signing of the SAA, Kosovo has agreed to implement, within a specified period, a series of reforms that stem directly from this agreement. Although this agreement is essentially an economic one, special attention should be paid to the reforms in the rule of law sector. Rule of law, since 2012, was placed at the center of the enlargement policy of the EU and remains one of the key priorities in this process. Moreover, the enlargement strategy, drafted by the European Commission in 2015, points out that countries aspiring to join the EU should establish and promote the functioning of key rule of law institutions.
What does the SAA’s rule of law reform signify for Kosovo? This agreement covers various fields such as political dialogue, enhancement of regional cooperation, the approximation of national legislation with those of the EU, as well as free movement of goods, services and capital. Given Kosovo’s current situation, the rule of law reforms are crucial to this agreement. Although the reforms in this sector do not cover a large part of the SAA, the Government of Kosovo should pay special attention and show serious commitment towards the implementation of such reforms. The experiences of countries in the region show that the main challenges in the implementation of the SAA have been on reforming the rule of law institutions. The fulfillment of the overall objectives of the SAA is closely related to the proper functioning of these institutions.
Kosovo institutions should focus on consolidating the justice system, increasing transparency and accountability of the government and its officials, fighting corruption and organized crime, preventing and controlling illegal migration, protecting personal data, protecting and managing the border, and drafting and adopting various laws through a transparent, efficient, and fair process in order to fulfill the objectives deriving from the SAA with regard to the field of rule of law. Given the experiences of the countries in the region, the most problematic areas in which Kosovo will face difficulties during the implementation and which will require special commitment from the Government and other relevant institutions, are the following:
First, the SAA stipulates that the consolidation and strengthening of the rule of law institutions are crucial for cooperation in matters of freedom, security and justice. This refers not only to the adoption and implementation of laws in this realm, but also strengthening the independence and accountability, impartiality in the decision-making, and increase in the efficiency of the judiciary. It also adds that these institutions need to be prepared for cooperation in civil, commercial and criminal matters. The European Commission has expressed its concern about the effectiveness and accountability in the judicial sector, noting that judicial institutions are still vulnerable to political interference. Contested appointments and unclear mandates have undermined the activities of the Kosovo Judicial Council and the State Prosecutor’s Office. Fulfilling these obligations poses a serious challenge for the Government of Kosovo and will not be achieved without genuine political commitment at all levels.
Second, it is very important to prevent and combat corruption and organized crime. Combating these phenomena is one of the key priorities not only for the implementation of the SAA but also for Kosovo’s path towards European Integration. More precisely, issues related to the fight against corruption and organized crime are focused on strengthening the legal system, properly implementing the Anti-Corruption Strategy, increasing the capacities of prosecutions and courts to investigate high profile political corruption cases, and enhancing institutional cooperation and coordination. Moreover, a special attention is paid to the fight against economic crimes, which requires the improvement of the legal framework, functionalization of institutional mechanisms dealing with financial investigation and confiscation of assets, increase the level of expertise in the institutions involved in this process. Moreover, Kosovo institutions should, in addition to the above, conduct joint investigations with the ones of the EU member states.
Third, SAA requires a greater commitment by Kosovo institutions with regard to money laundering and terrorist financing. More precisely, SAA foresees the adoption and implementation of legislation related to prevention, investigation and prosecution of these cases, and the establishment of a solid anti-money laundering prevention system. Special emphasis is dedicated to strengthen the capacities of the main institution responsible to fight money laundering offences, and better coordination and cooperation in this field between Kosovo and EU member state institutions. Despite the fact that these issues were also addressed in the Visa Liberalization Roadmap, this area remains a challenge for our institutions.
In conclusion, similar to the other Balkan countries, the fulfillment of the obligations deriving from the SAA will be a long and challenging process for Kosovo. The government should put more efforts and pay particular attention to the implementation of all reforms under the SAA, especially the rule of law ones, in order to have a successful implementation of this agreement.
Albana Merja & Delfinë Elshani, Group for Legal and Political Studies
This article was orginally written in Albanian and published http://koha.net/?id=55&l=154355