Cause and Effect in European Politics and Law

No Opening of Chapter 23 until Croatian Demands Are Met

Adelina Marini, June 4, 2016

Serbia is getting a green light to open Article 23 only when all interests, positions and opinions of member states are integrated in a common Council position. This is what Croatia’s Foreign Minister Miro Kovač explained at a special press conference in Zagreb, called to clear the numerous misunderstandings of the last few days, bred, amongst all else, also by incorrectly interpreted information by Croatian media. He stated that the European Commission had integrated all three of Croatia’s demands, which were the reason for Zagreb’s veto on the opening of one of the three most important chapters of the negotiation process with Serbia – 23 “Judiciary and fundamental rights”. The three demands have to do with the rights of national minorities, the law of universal jurisdiction in the procedural treatment of war crimes, and full cooperation with the tribunal for war crimes in former Yugoslavia in The Hague. 

The draft common position is yet to be approved by the Council of Ministers, he added. To ensure better alignment of Croatia’s positions, next week a intra-departmental workgroup is to be formed, which will include the Ministry of Justice, the Ministry of Internal Affairs, and the Ministry of War Veterans. With the mediation of the foreign ministry, Croatia’s positions will be coordinated in this workgroup, so that they can be well integrated in the common European position for the opening of Chapter 23. Miro Kovač made it very clear that it is not about new conditions, but about defining the benchmarks, accompanying the opening and closing of every negotiation chapter, ever since negotiation methodology changed several years ago. “This means something, that Serbia will have to do at a later stage before the benchmarks for closing the chapter are formulated”, explained Miro Kovač.

According to the new negotiation methodology, applied for the first time to Montenegro, in the beginning of the negotiation process the chapters, which proved to be most difficult for Eastern European countries, are opened. Those are chapters 23 and 24, which cover the judiciary, fundamental rights, minority rights, and media independence. Those chapters are opened first and closed last. In the case of Serbia, there is one more chapter of similar importance – 35, which deals with the settling of relations between Serbia and Kosovo. The Serbian case is different in one more way. Because of heavy geopolitical differences between the EU and Serbia, the negotiation process started with an insignificant chapter, which got Chapter 35 added to it. Serbia hopes, the EU as well, that chapters 23 and 24 will be opened in June. Miro Kovač is convinced this is absolutely possible. In order for this to happen, Serbia must agree to comply with the new benchmarks. 

Croatia agreed to lift its reserve if its demands are integrated into the EU’s negotiation position. A draft of the position was prepared by the European Commission and sent to member states on June 2nd. The document, which is available to euinside, shows that all of Zagreb’s demands are taken into account. The overall assessment in the document is that Serbia is still far from complying with European acquis regarding Chapter 23 and “considerable and sustained efforts” will be necessary in order to ensure that all will be fulfilled by the time of accession. The biggest problems at this stage are related to the independence, impartiality, accountability and efficiency of the judiciary. The entire system of investigating, prosecuting and trying war crime cases requires further improvements. There is an appeal for good regional cooperation and neighbourly relations in the prosecution of war crimes, “including the aim to avoid conflicts of jurisdiction”, says the document, which is a reply to Zagreb’s demand about the application of the law for universal jurisdiction. 

There is serious attention paid to media in the draft position. It says that the recently adopted media laws should be supplemented by additional measures, which will ensure “a free, transparent and pluralistic media landscape”. It is expressly stressed how important it is to abide by the freedom of expression and independence of media, including “safeguarding the physical integrity of journalists”. The EU pays a lot of attention to achieving results in the investigation of journalists’ killings. 

According to the document, Serbia’s legal framework for the protection of the members of national minorities is above EU average in terms of quality, but there is a problem with the implementation. There are serious deficiencies in Serbia with regards to implementing the protection of fundamental rights in practise. In several places of the document there are mentions of Croatia’s demands, but Bulgaria's as well, regarding national minorities. It is demanded that Serbia complies with legal provisions about the right of using minority languages in their contacts with local authorities and guarantee the access to media in the minorities’ languages. Serbia is also called to take measures to ensure “adequate representation” in public administration of national minorities “through the establishment of appropriate recruitment criteria in its legislative framework”. The latter is also an often mentioned Croatian request. 

All of these requests are part of the benchmarks in the Council’s draft position. Those that Croatia insists on are: 

- Serbia ensures adequate investigations of allegations and equal treatment of suspects, regardless of their nationality or ethnicity or that of the victims; Serbia provides an initial track record of investigation, prosecution and adjudication of a higher number of cases including against high level suspects; Serbia ensures proportionality of sentences and a sentencing policy in line with international criminal law standards;

- Serbia engages constructively with other countries in the region and ensures swift exchange of information;

- Serbia fully co-operates with the International Criminal Tribunal for the former Yugoslavia (including by fully accepting and implementing its rulings and decisions) and with the Mechanism for International Criminal Tribunals;

- Serbia implements the action plan on the effective implementation of existing rights of national minorities, taking into account the recommendations of the third Opinion on Serbia issued by the Advisory Committee of the Council of Europe Framework Convention for the Protection of National Minorities, with particular emphasis on education, the use of minority languages, access to media and religious services in minority languages and adequate representation in the public administration. Serbia monitors its implementation and assesses its impact by the end of 2018;

The Croatian foreign minister underlined that the country is not creating bilateral problems, but is working for the respect of the rule of law, which, in his words, is the identity of the EU. Serbia is invited by the Union to present its negotiation position. The opening of Chapter 23 will depend entirely on the negotiation positions of both sides. It became clear from the discussion in the Committee of Permanent Representatives, that there is large support for the integration of Croatia’s demands into the negotiation position. Bulgaria expressed satisfaction that its requests will also be adequately reflected. Support in this sense was extended from Romania as well. Germany, Italy, and Austria expressed hopes that Chapter 23 will be opened in June.

Translated by Stanimir Stoev 

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