11 EU enlargement: Croatia
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7377/11
COM(11) 110
| Commission Report: Reforms in Croatia in the field of the judiciary and fundamental rights
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| Legal base | —
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| Documents originated | 2 March 2011
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| Documents deposited | 16 March 2011
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| Department | Foreign and Commonwealth Office and Ministry of Justice
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| Basis of consideration | EM of 30 March 2011
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| Previous Committee Report | None; but see (32179) 16321/10: HC 428-x (2010-11), chapter 19 (8 December 2010)
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| To be discussed in Council | To be determined
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| Committee's assessment | Politically important
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| Committee's decision | Cleared
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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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