Documents considered by the Committee on 5 April 2011 - European Scrutiny Committee Contents


11   EU enlargement: Croatia

(32600)

7377/11

COM(11) 110

Commission Report: Reforms in Croatia in the field of the judiciary and fundamental rights

Legal base
Documents originated2 March 2011
Documents deposited16 March 2011
DepartmentForeign and Commonwealth Office and Ministry of Justice
Basis of considerationEM of 30 March 2011
Previous Committee ReportNone; but see (32179) 16321/10: HC 428-x (2010-11), chapter 19 (8 December 2010)
To be discussed in CouncilTo be determined
Committee's assessmentPolitically important
Committee's decisionCleared

Background

11.1  The Committee's report under reference outlines the previous Committee's extensive exchanges with the previous administration about the question of conditionality in the enlargement process, looking back at the experience derived from the post-accession monitoring of Bulgaria and Romania and ahead with respect to Croatia. This included discussion of the new chapter 23, which was introduced into the accession process in the light of that earlier experience with Bulgaria and Romania. That new chapter covers "governance issues" and provides for a number of benchmarks revolving around judicial reform, the handling of domestic war crimes, the fight against corruption the treatment of minorities and returning refugees, the protection of human rights and cooperation with the International Criminal Tribunal for the Former Yugoslavia (ICTY).

11.2  On 8 September 2010, the Committee considered[40] the fourth main Reports on Bulgaria and Romania's post-accession Cooperation and Verification Mechanism. In our Report, we set out the essence of a letter of 22 June 2010 from the Minister for Europe (Mr David Lidington), in which he reviewed Croatia's progress so far and, most importantly, the decision to open negotiations on the new JHA chapter 23 and the closing benchmarks, with regard to which he said that that the UK had sought and secured agreement to a closing benchmark within this chapter stating that (Minister's italics):

"Full cooperation with the ICTY remains a requirement for Croatia's progress throughout the accession process, including for the provisional closure of this chapter, in line with the negotiating framework adopted by the Council on 3 October 2005."

11.3  We asked the Minister to expand on this, and say, in judging what constituted "full" cooperation, to what extent the Council would depend upon the assessment in this regard of the ICTY Chief Prosecutor.

11.4  The Minister's response is set out in paragraphs 12.19-12.23 of chapter 12 of the Report[41] of our 20 October 2010 meeting. On the matter of "full cooperation", the Minister said:

"The previous Government publicly defined 'full co-operation' with ICTY as committed and sustained activity demonstrating one hundred per cent effort and political will. I want us to maintain this yardstick and apply it consistently across the region. In the light of concerns raised by the Prosecutor we expect Croatia to demonstrate, in particular, continued efforts to meet requests for documents, and to take all appropriate steps to conduct a credible investigation to find them."

11.5  He also said that the Commission will produce an assessment of Croatia's progress against all the benchmarks and make a recommendation to the Council to close Chapter 23 when they judge the benchmarks have been met:

"It will then be for the Council to decide by unanimity whether or not to close the chapter. The UK is a strong supporter of ICTY and international justice. We believe the Commission's assessment will need to consider all relevant factors and, of course, take full account of the assessment of the ICTY Chief Prosecutor who has a clear mandate from the UNSC to report on countries' cooperation with the Tribunal."

11.6  As we noted in our Report, [42] conditionality in the enlargement process is important not only in the case of Croatia, but also in that of Serbia, where a similar potential conflict between ICTY-related conditionality on the one hand and Serbia's desire to move to the next stage in the accession process and Member States' desire to reinforce the direction of travel of the present government's politics on the other, has been apparent.

11.7  At our meeting on 8 December 2010, the Committee considered the Communication on the Commission's "Enlargement Strategy and Main Challenges 2010-2011". Our Report includes what the Minister for Europe described as the Government's "guiding principles for the UK's approach to EU enlargement", which he said would "ensure that EU enlargement remains sustainable by satisfactorily upholding conditionality so that each applicant joins the EU only when it is ready to do so."

11.8  With regard to what the Commission had to say about Croatia, the Minister noted that, though steady overall progress had been made since negotiations opened in October 2005. Croatia needed to make further progress in the field of judiciary and fundamental rights. In particular, he said, Croatia needed to build up track records in relation to the independence and efficiency of the judiciary, the fight against corruption and organised crime, respect for and protection of minorities, including refugee return and war crimes trials. With regard to cooperation with the ICTY, he pointed to renewed reference to full cooperation as a requirement for Croatia's progress through the accession process, and for the full accomplishment of the Chapter 23 closing benchmarks as a means to removing the need to consider another cooperation and verification mechanism. He concluded by saying:

"The Government agrees with this approach and will require evidence of a track record of implementation of reform before agreeing to closure of Chapter 23. The Government will also continue to press upon Croatia the need to fully cooperate with the ICTY. This is a requirement for closure of accession negotiations."[43]

The Commission's report

11.9  The Commission report stems from the undertaking in the Commission's "Enlargement Strategy and Main Challenges 2010-2011" that it would closely monitor Croatia's progress in the field of judiciary and fundamental rights and take stock of the situation in the first quarter of 2011. The Commission recalls that this chapter in the accession negotiations requires the establishment of convincing and credible track records and hence is likely to be among the last chapters to be provisionally closed. It also says that tangible results regarding the judiciary and the fight against corruption and organised crime are essential for the credibility of the EU's enlargement process, in accordance with the EU's renewed consensus on enlargement, adopted by the December 2006 European Council.

11.10  The report is based on information gathered and analysed by the Commission, in particular from the Croatian authorities; several targeted peer assessment missions where senior judges, prosecutors and police officers from EU Member States have reviewed the situation in Croatia; and information from various international and non-governmental organisations. It reviews the steps taken by Croatia to meet the judiciary and fundamental rights benchmarks and draws attention to the main areas where shortcomings have been identified and need to be addressed.

11.11  The closing benchmarks (CBM), and the Commission's views, are:

CBM 1: CROATIA UPDATES ITS JUDICIAL REFORM STRATEGY AND ACTION PLAN AND ENSURES EFFECTIVE IMPLEMENTATION

Institutional capacity for the management of judicial reforms, including post-legislative scrutiny, has improved.

CBM 2: CROATIA STRENGTHENS THE INDEPENDENCE, ACCOUNTABILITY, IMPARTIALITY AND PROFESSIONALISM OF THE JUDICIARY

Measures have been taken to strengthen judicial independence. But the newly constituted State Judicial Council and the State Prosecutorial Council need to demonstrate their ability to apply correctly the new transitional provisions for the recruitment of judges and prosecutors, as well as an improvement in the conduct of disciplinary proceedings against attorneys and judges.

CBM 3: CROATIA IMPROVES THE EFFICIENCY OF THE JUDICIARY

Croatia has slightly reduced the overall case backlog from 795,722 to 785,561 cases and a track record of implementation of the new criminal procedure has been established. However, a convincing track record of implementing the civil procedure code has not yet been established: the backlog of old enforcement decisions has increased, and important courts, including Zagreb and Split, continue to suffer from high case backlogs. Croatia will need to reduce further the overall case backlog, in particular the number of old civil cases and enforcement decisions.

CBM 4: CROATIA IMPROVES THE HANDLING OF DOMESTIC WAR CRIMES CASES.

Progress has been made towards establishing a track record of impartial handling of war crimes cases by the courts. But the issue of impunity for cases which have not been investigated or prosecuted has not been properly addressed, and the new strategy to ensure the proper investigation and prosecution of such crimes has not yet been implemented. Croatia will need to proceed with the domestic war crime cases which have not yet been addressed, in particular through implementation of its new strategy and systematic use of specialised chambers so as to present a convincing track record.

CBM 5: CROATIA ESTABLISHES A TRACK RECORD OF SUBSTANTIAL RESULTS BASED ON EFFICIENT, EFFECTIVE AND UNBIASED INVESTIGATION, PROSECUTION AND COURT RULINGS IN ORGANISED CRIME AND CORRUPTION CASES AT ALL LEVELS INCLUDING HIGH LEVEL CORRUPTION, AND IN VULNERABLE SECTORS SUCH AS PUBLIC PROCUREMENT

The operational capacity of USKOK (the specialised prosecution service for corruption and organised crime cases) has been reinforced, and the police have become more effective. A number of high-level corruption investigations are underway. However, most high level corruption and public procurement cases have not yet reached the stage of court rulings and the capacity of the courts to handle cases adequately remains to be fully tested. Some 20% of USKOK police officer posts remain to be filled. De-politicisation and improved professionalism of the police have not been fully addressed. Croatia will need to demonstrate effective handling of a sufficient number of cases through the relevant stages of the procedure (investigations, prosecutions or court rulings) covering high level corruption cases, local level corruption and including cases related to public procurement and the judiciary. Interagency cooperation, including information exchange, needs improving.

CBM 6: CROATIA ESTABLISHES A TRACK RECORD OF STRENGTHENED PREVENTION MEASURES IN THE FIGHT AGAINST CORRUPTION AND CONFLICT OF INTEREST

Improved legislation on access to information, on political party financing and on conflicts of interest was adopted in February 2011. The Conflict of Interest Commission has been strengthened. Anti-corruption action plans in state owned companies are being implemented. However, some provisions in the newly adopted legislation remain to be clarified and tested in practice. Implementing structures need to be strengthened. Transparency and integrity in public administration and public procurement needs to be further strengthened. The rules concerning supervision of private financing of political parties need clarifying, and the administrative capacity necessary for applying the legislation provided.

CBM 7: CROATIA STRENGTHENS THE PROTECTION OF MINORITIES, INCLUDING THROUGH EFFECTIVE IMPLEMENTATION OF THE CONSTITUTIONAL ACT ON THE RIGHTS OF NATIONAL MINORITIES (CARNM)

The general protection of minorities has improved, and measures taken aimed at reconciliation and increased tolerance among citizens, including training of police and media. However, there has been no tangible improvement in the level of employment of national minorities as required by the CARNM. Croatia will need to set out long term plans, backed by statistics, for fully meeting its obligations under the CARNM as regards minority employment, and should adopt a plan to tackle the shortcomings identified by the study on the under-representation of minorities in the wider public sector.

CBM 8: CROATIA SETTLES OUTSTANDING REFUGEE RETURN ISSUES

Croatia has partially implemented its Action Plan on housing returning refugees/former tenancy rights holders; met targets for 2008; improved the handling of appeals for rejected housing reconstruction applications; and made progress with the reconstruction of the remaining properties. However, the backlog of existing housing reconstruction appeals, standing at 4,000, has not been sufficiently tackled. Croatia will need to implement in full its 2009 target, make substantial progress in providing accommodation to applicants for housing care not included in the 2009 target and eliminate the backlog of existing reconstruction appeals.

CBM 9: CROATIA IMPROVES THE PROTECTION OF HUMAN RIGHTS

The general legal framework for the protection of human rights has been improved, notably though stronger constitutional provisions adopted in July 2010. Awareness-raising of police, prosecutors and courts on human rights law has continued. Implementation of the strategy and action plan for the protection and integration of Roma is on-going. Freedom of expression should continue to be respected. Access to justice has improved. Establishment of a track record of implementation of the Anti-Discrimination Law and the Law on Hate Crimes has begun. However, Croatia will need to strengthen the staff and budget of the Office of the Ombudsman, ensure proper follow-up of the Ombudsman's recommendations and make further progress in implementing the Anti-Discrimination Law and the Law on Hate Crimes.

CBM 10: FULL COOPERATION WITH THE ICTY REMAINS A REQUIREMENT FOR CROATIA'S PROGRESS THROUGHOUT THE ACCESSION PROCESS, INCLUDING FOR THE PROVISIONAL CLOSURE OF THIS CHAPTER, IN LINE WITH THE NEGOTIATING FRAMEWORK ADOPTED BY THE COUNCIL ON 3 OCTOBER 2005

As requested by the ICTY, the Croatian Government's inter agency task force "has begun exploring important new avenues in its investigations aimed at locating or determining the fate of missing artillery documents". The ICTY Prosecutor will next report to the UN Security Council in May 2011.

11.12  In conclusion, the Commission says Croatia has made considerable progress in the field of judiciary and fundamental rights, but that further work remains to be done, in particular to establish convincing track-records in the field of the judiciary and the fight against corruption, to address impunity for war crimes and to settle the outstanding refugee return issues. Accordingly, the Commission:

  • encourages Croatia to redouble its efforts to meet all closing benchmarks set out in the EU's opening negotiating position for chapter 23 of June 2010, and in particular, to address the remaining issues set out in this Communication;
  • will continue to monitor Croatia's progress closely and further support Croatia, through technical expertise and financial assistance, to enable it to meet the benchmarks;
  • as soon it has ascertained that Croatia has met all closing benchmarks, will submit a closing benchmark report and draft closing EU position to the Council, in line with established procedures.

The Government's view

11.13  In their joint Explanatory Memorandum of 30 March 2011, the Secretary of State for Justice (Mr Kenneth Clarke) and the Minister for Europe (Mr David Lidington) describe the report as "an accurate and objective assessment which usefully points out what further actions Croatia must undertake in order to meet the benchmarks", and note that "Croatia has stated its strong political commitment to carrying out the necessary reforms as soon as possible"

11.14  Their detailed comments are as follows:

"As this interim report demonstrates Croatia has made considerable progress in the field of judiciary and fundamental rights. For example, strengthening the independence of the judiciary by setting up the State School for Judges and Prosecutors, improving the efficiency of the judiciary by putting in place measures to prevent undue delay in court cases, improving the physical infrastructure of courts and continuing the rationalisation of municipal and misdemeanour courts. In addition, Croatia has made good progress in the fight against corruption and the report points out that, in a number of high-level corruption cases, investigations are underway or indictments have been issued.

"However, the report makes clear that further work remains to be carried out. For example, Croatia has yet to establish a convincing track record of recruiting and appointing judges and state prosecutors based on the application of uniform, transparent, objective and nationally applicable criteria. Croatia has also not properly addressed the issue of impunity for domestic war crimes cases, nor implemented the new strategy to combat this. Regarding the fight against corruption, most high level corruption and public procurement cases have not yet reached the stage of court rulings and PNUSKOK lacks full administrative capacity."

11.15  With regard to the benchmark requiring full cooperation with the International Criminal Tribunal for the former Yugoslavia (ICTY), the Ministers say:

"[T]he report states that the Croatian Government's inter agency task force has begun exploring important new avenues in its investigations aimed at locating or determining the fate of missing artillery documents. The Government welcomes this progress, encourages Croatia to build upon this, and looks forward to the ICTY Chief Prosecutor's next report to the UNSC."

11.16  Concerning tangible results, the Ministers say:

"The report rightly states that 'tangible results regarding the judiciary and the fight against corruption and organised crime are essential for the credibility of the EU's enlargement process.' The Government fully supports this statement and will continue to support the principle of rigorous conditionality. It will continue to monitor Croatia's progress and ensure that the chapter is closed on the basis of a thorough technical assessment against the benchmarks, including establishing the necessary track records so that reforms are sustainable. In recent meetings both the Foreign Secretary and I have made clear to Croatian counterparts the need to pursue their reform agenda with vigour in order to be ready to join the EU. The Government is supporting Croatia's reform efforts through a range of practical initiatives including a UK/Croatia 'Twinning' project led by the Ministry of Justice."

11.17  Finally, the Ministers note that the timing of the closure of Chapter 23 depends on the Croatia's progress in fulfilling the benchmarks, and that further discussion in the relevant Council working group is likely to take place in May.

Conclusion

11.18  We note that Croatia has a good deal further to go before Chapter 23 can be provisionally closed. Of particular concern is recruitment of judges and prosecutors; the implementation of the civil code; the overwhelming backlog of cases; impunity from war crimes; and the backlog of housing appeals for returnees. We will monitor the progress of Chapter 23 very closely to ensure that the mistakes made with Bulgaria and Romania are not repeated.

11.19  The next part of this process will follow publication of the next report by the ICTY Chief Prosecutor, when we shall no doubt hear from the Minister. When he writes to us, we would like that to be at the point when the Minister is able to include the text of what the Chief Prosecutor has to say, as well as his comments on it.

11.20  In the meantime, we clear the document.



40   (31824) 12558/10 (31825) 12562/10: see HC 428-i (2010-11), chapter 65 (8 September 2010). Back

41   31824) 12558/10 (31825) 12562/10: see HC 428-iv (2010-11), chapter 12 (20 October 2010). Back

42   Ibid.  Back

43   See headnote: see (32179) 16321/10: HC 428-x (2010-11), chapter 19 (8 December 2010).  Back


 
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