In times of crisis, it is tempting to ignore chronic problems, a temptation that the European Union should resist when planning its next enlargement.
Croatia is likely to join the EU on 1 July – unless constitutional wrangles derail that timetable; Montenegro is negotiating to join the Union; and Serbia – provided that political conditions for co-operation with Kosovo are met – wants to open talks for membership in June. The European Parliament will next month address whether Serbia has done enough for negotiations to start. This is the moment for those who honour democratic values and the rule of law to say that certain fundamental principles are not negotiable and that dealing with them cannot be postponed until a more convenient date.
Balkan governing parties often use the shameful legal tools of Yugoslav history to punish enemies and reward friends: the criminal offence of ‘abuse of office' was enacted under Tito as a statutory device to catch those who pursued private profit with state assets. In Serbia, it has been used, absurdly, to prosecute business people for the crime of making too much or too little profit (what else is a private business meant to do?): a profit of more than €13,000 could be punishable by 12 years' imprisonment.
Those targeted were often investors encouraged by the government to participate in Serbia's privatisation process, only then to fall out of favour. A parallel provision was used in Ukraine to justify locking up Yulia Tymoshenko, a former prime minister.
The story of Tomislav Djordjevic is a good example of juridical creativity in modern Serbia. Privatisation is needed to raise funds and to move away from state domination of the economy. Auction off a famous hotel in Belgrade, neglected by the state. Let the lucky winner sign up, make his first few payments and embark on a refurbishment. Then send state inspectors to conclude that the hotel's revenues are dipping (since the rooms are being refurbished), so the purchaser must have done something wrong. Fiction, of course, as the contract makes no requirement as to level of revenues. The state terminates the privatisation contract and keeps the purchaser's money.
When Djordjevic challenges the thievery in court, the state's reaction is robust: ‘abuse-of-office' accusations, media slanders, arrest and imprisonment. He is incarcerated for nine months and six days, his daughter and associates for shorter periods. No one imagines them guilty of anything other than objecting to being despoiled. As the Serbian judicial system has failed him, Djordjevic's last resort is the European Court of Human Rights in Strasbourg.
The Serbian Privatisation Agency has won 98% of its cases against claims of victims of such extortions. In a recent public lecture in Belgrade, there was noisy applause when I said that, in democracies, the state cannot always win in its own courts. While a very ordinary lawyer in Lille or Porto can win a sensitive case against the government, the best legal teams in Belgrade know this is barely possible. Which is perhaps why Serbia enjoys the sad distinction of being the European leader in per-capita applications to the European Court of Human Rights.
At each accession, there is a risk of forgetting the lessons of previous enlargements. But accession is a great prize, for all concerned. That prize should not be devalued. Until there is genuine respect for the rule of law, EU candidates should be told that they need to wait. There is no harm and much good in politely saying so, as the message will be welcomed by the ordinary citizen, hungry to live in a state where justice constrains abuse. Judicial independence and the rule of law are not desirable goals to be attained by EU member states one day: they are indispensable prerequisites, now.
Ian S. Forrester is a partner at the law firm White & Case and a professor in European law at Glasgow University. A specialist in European human-rights law, he has brought a number of cases to the European Court of Human Rights.