of the Judiciary in Southeast Europe

© Springer-Verlag Berlin Heidelberg 2015
Siniša Rodin and Tamara Perišin (eds.)Judicial Application of International Law in Southeast Europe10.1007/978-3-662-46384-0_5

‘Europeanisation’ of the Judiciary in Southeast Europe

Sanja Bogojević 

Lund University, 22100 Lund, Sweden



Sanja Bogojević

1 Introduction

With the creation of what today is the European Union (EU) began the practice of ‘Europeanisation’ of laws in Europe. This signifies the processes of endorsing EU law and European integration by, inter alia, implementing the corpus of laws stemming from European law making, as well as adapting and training domestic official bodies to cooperate with EU-based institutions.1 This process was catalysed by the Court of Justice of the EU (CJEU), which proclaimed EU law a ‘new legal order’, distinct from both national and international law,2 and having supremacy over national bodies of laws of the Member States.3 In this chapter, what is examined are the ways in which the judiciary in Southeast Europe—covering Slovenia, Croatia, Bosnia and Herzegovina (BiH), Serbia, Kosovo*,4 the Former Yugoslav Republic of Macedonia (FYR Macedonia), and Albania—has dealt with the process of Europeanisation in the light of EU membership and membership aspirations. The courts in Southeast Europe make a fascinating study for at least two reasons.

To start with, they are the legal cornerstones of countries that share a common political and legal history; or, in the recent past they were run according to communist ideology. The Communist Party seized control of Albania following the Second World War, and officially it became the People’s Republic in 1946.5 In the same period, Slovenia, Croatia, BiH, Montenegro, Serbia, Kosovo and FYR Macedonia formed part of the Socialist Federal Republic of Yugoslavia (SFRY, 1945–1991).6 This communality is significant because it implies that the judiciary in Southeast Europe has, due to its history, had similar attitudes towards law and the legal profession. Rodin explains that in a communist legal system:

[j]udges were supposed to follow, not to interpret, the will of the legislature not only and not primarily because of the hierarchical structure of the legal system, but because of the authoritarian nature of the political system.7

This technocratic role of judges meant that law was understood as being objective, and the act of legal interpretation ‘a process of deduction, void of any contextual considerations’.8 Examining the application of international law, as well as the national courts’ reasoning in this regard, allows us to analyse whether, and if so, how, the judiciary in Southeast Europe has moved away from its communist-oriented legal reasoning.

Moreover, countries in Southeast Europe share a common political and legal goal: to be part of the ‘new legal order’, or the EU. They, nevertheless, are at different stages of fulfilling this objective. Slovenia has formed part of the EU since 2004 and Croatia, joining on 1 July 2013, is the EU’s newest member. BiH, Albania, Serbia, FYR Macedonia and Kosovo are at different stages of being granted or of negotiating their candidacy.9 Examining whether the respective national courts have embraced these legal aspirations and applied international law is a useful exercise in analysing the extent to which both the idea and realisation of EU membership have impacted on the legal reasoning of the national courts.

There are a number of important caveats to bear in mind when analysing the application of international law by the domestic courts in Southeast Europe. To start with, this is not an exercise in simply spotting the formal rules and procedures allowing such application. Rather, the actual life given to international law, that is, the meaning and the legal implication that follow such interpretation, is the focal part of this investigation. Another important limitation is that such an enquiry does not seek to prescribe a particular judicial route for national judiciaries in new, or aspiring, EU Member States. Instead, this study has the objective of identifying whether national courts in the Southeast parts of Europe have taken international law into consideration and, if so, how this has been done.

The next part of this chapter goes on to explain why national courts matter in the process of the ‘Europeanisation’ of law. In the third section, the different judicial systems examined in this book are introduced: first, against their historical backgrounds, and then by outlining their judicial constructions. Here, discussion focuses on legal culture or the importance of going beyond the mere wording of the law in order to appreciate the implications of law. In the fourth section, the national reports are analysed in a comparative manner and, finally, fifth section evaluates these, together with the general findings of this chapter.

2 What Have National Courts Got to Do with It?

At the risk of stating the obvious, a necessary condition for effective judicial control is a rational judicial architecture.10 It is crucial to consider national courts, as well as international courts, in any investigation of the exercise of law. Along similar lines but in a more general context, Ewing and Kysar describe the role of the judiciary as forming part of a system of ‘prods and pleas’. This refers to the capacity of different authorities to push each other into action; in the case of judges, they are understood to perform their roles with a view to catalysing activity somewhere else in the system.11 This means that the role of the court is ultimately to activate a series of actors, including governments or businesses, to take measures to make international law both effective and possible. Over and above these considerations, it is crucial to examine the judiciary in the process of the ‘Europeanisation’ of law for at least two reasons.

First, the EU is based on a system of cooperative federalism, meaning that all courts—national, as well as EU courts—are entitled and obliged to apply EU law to the disputes before them.12 Following Article 4(3) TEU13—and more precisely, the principle of loyal cooperation—the national courts have a duty to apply EU law. Article 19(1) TEU, which states that Member States shall provide sufficient remedy to ensure effective legal protection in all fields of EU law, supports this duty. From this perspective, national courts are the ‘guardians’ of the EU legal order,14 and, as such, the key players in making EU law effective. This means that the Europeanisation of laws in Southeast Europe depends, and will depend once all Southeast European states become EU members, on the national judiciaries.

Second, national courts are crucial actors in the process of shaping the EU legal system. It is primarily via preliminary rulings that a cross-judicial dialogue between domestic and EU courts is created, which tends to lead to this shaping process. Indeed, as a result of manifold initiatives from the national courts demanding clarification of EU law, core doctrines of EU law have been established, including direct effect (in Van Gend en Loos), the principle of supremacy (Costa v. ENEL, Simmenthal II), state liability (Francovich and Bonifaci), horizontal direct effect (Defrenne II), direct effect of directives (Van Duyn, Marshall), as well as indirect effect (Von Colson).15 It is mainly, although not exclusively, the lower national courts that have pushed for these references, meaning that in investigating the ‘Europeanising’ effects in Southeast Europe, the judiciary is a necessary case study—and one that needs to cover all instances.

In short, in the EU legal system, national courts are obliged to follow EU law and ensure its effective application. In doing so, Čapeta explains, the national judges

were willing to challenge established legal rules…[t]hey challenged either domestic rules, relying on the new values imported by the new European legal order, or the newly-established rules of the European legal order, defending the values of the domestic legal order. They were creative judges who used all the possibilities of the two legal orders to try and improve legal rules.16

To what extent such creativity exists in the courts in Southeast Europe is the query investigated next.

3 Starting Point: Looking Back, Going Forward

With the exception of Albania, countries in Southeast Europe were, until recent history, part of a single jurisdiction: SFRY (1945–1991).17 Like other socialist states, SFRY attempted to create a legal system based on Marxist principles.18 This changed following the break with Stalin in 1948 when Yugoslavia started creating versions of its own socialist laws,19 which, following Kühn’s explanation, served ‘solely the interest of the Party’.20 This body of law was also uniformly applied through a centralised judiciary, which was created by the federal authorities, and the federal Supreme Court, whose aim was to ensure uniformity in judicial decisions.21

This legal system was largely decentralised once the constitution was revised in 1974; each federation received its own constitutional court, leaving the Federal Court with little power. With the proclamation of independence by Slovenia and Croatia on 24 June 1991, SFRY began its process of disintegration, and moved toward independent, liberal legal systems.22 That same year, communism fell also in Albania, where the Communist Party had seized control in 1946.23

Today, different legal jurisdictions with distinct judicial structures exist in Southeast Europe. For the most part, judicial power is organised in a four- or three-tiered hierarchical structure with the Supreme Court on top, followed, for example, by courts of general jurisdiction, and administrative and commercial courts. In this type of legal structure, the constitutional court formally falls outside the judicial branch; its role is to rule on the conformity with the constitution of national, and, in certain regards, also international laws. This is the case, for instance, in Albania,24 FYR Macedonia,25 and Serbia.26

In Slovenia and Croatia,27 EU law has precedence over national law, and it is the CJEU that is entrusted with the highest authority to rule on its validity. Similarly, the jurisdiction of the European Court of Human Rights is binding. The national courts are organised into courts of general and specialised jurisdiction, the highest court being the Supreme Court. Any questions concerning the constitutionality of laws, however, are—similarly to the jurisdictions mentioned previously—referred to the constitutional court.28

Kosovo and BiH share similar judicial structures to the extent that international judges were installed in the national court systems following the Kosovo conflict and the Bosnian War respectively. In accordance with the Dayton Accord that marked the end of the Bosnian War, BiH is composed of two separate entities: a joint Muslim-Croat Federation of Bosnia and Herzegovina (the Federation), and the Serbian Republic of Bosnia and Herzegovina (Republic of Srpska, ‘RS’).29 This division is reflected also in the country’s judicial system, which has two separate three-tier judicial systems, that is, two different constitutional courts, supreme courts and district courts. BiH also has a national Constitutional Court which has binding legal authority across the entire country—including both the Federation and the RS. This court, which has nine members, is composed of four judges elected by the Federation’s House of Representatives, two are appointed by the RS National Assembly and three are international judges named by the president of the European Court of Human Rights.30 The Constitutional Court has the sole jurisdiction to resolve any constitutional conflicts between the Federation and RS, as well as to review the laws of the two entities and their conformity with the Bosnian constitution, in addition to decisions made by any other courts in the country.31 Similarly in Kosovo, international judges form part of the Kosovo judiciary both in the Constitutional Court and the courts of general jurisdiction. These exist within the framework of the European Union Rule of Law Mission in Kosovo (EULEX), which was created and instituted to help adjudicate, for example, crimes committed during the Kosovo conflict.32

What this shows is that following the break-up of communism in Southeast Europe in the early 1990s, distinct judicial structures took shape. For the most part, the judiciary in this region consists of a three- or four-tier court system with the Supreme Court entrusted with the highest judicial authority and the constitutional court with the interpretation of constitutional law matters. EU Member States—here, Slovenia and Croatia—follow a slightly different judicial architecture in that it is the CJEU that interprets EU law, which ultimately is also national law. In Kosovo and BiH, on the other hand, the judiciary construction is distinct from all others in Southeast Europe, with international judges forming an important part of the higher court structures. It is important to bear these distinct institutional features in mind in order to understand how the judiciary in Southeast Europe is built and how it ultimately functions. This, however, is only part of the story. To appreciate the meaning given to law by these different courts, the legal culture in which these exist and from which they derive must first be examined.

3.1 Beyond Words: The Importance of Legal Culture

‘Legal culture’ is a ubiquitous concept.33 It reflects a fusion of social, political, and economic forces that impacts on a law’s development, significance and process of implementation, and also expresses the institutional and historical traditions through the legal language in a particular jurisdiction.34 Each rule or legal framework has a particular meaning tied to a particular place and time,35 and each legal concept and line of legal argument operates in predetermined traditional contexts that spring from different cultural traditions, or according to a so-called mentalité.36 As such, a rule or regime cannot be examined only as a black-letter text; rather, it must be scrutinised through a culture-specific lens, taking into consideration its legal culture.37 Such a study may be carried out in various ways: for instance, by focusing on legal culture as a series of ‘internal’ factors—including judicial decisions, scholarly comments, the architecture of legal institutions—and/or ‘external’ elements—comprising social behaviour, attitudes to judicial decisions and the informal organisation of behaviour within a community.38 In this collection of papers, legal culture is explored by examining judicial decisions and how the courts have given effect to international law in Southeast Europe.

Here, it is important to highlight the historical commonality of the countries of Southeast Europe examined, as this explains how the judiciary has traditionally viewed (international) law, as well as the judicial profession. It has already been noted that the judiciaries of Southeast Europe come from authoritarian and totalitarian traditions: its members were trained under a centrally planned economy, receiving a legal education different from that in Western Europe at the time.39 In Kühn’s description, following World War II, continental legal culture underwent a gradual transformation—distinct from that of Southeast Europe. Having strictly adhered to the letter of laws under the Nazi era—leading to some grossly unjust and horrific verdicts—meant that, once the war came to an end, the law and its implications were thoroughly reconsidered.40 For instance, during this period judicial review of constitutional laws was increasingly practised. This, together with the expansion of state powers and the building of welfare and regulatory social structures, contributed to the transformation of the concept of law. As a result, in 1990—when Southeast European states emerged from their five decades of intellectual isolation from modern Western thought—Western legal culture was very different from what it had been before World War II.41

During the same period, in the post-communist countries, the emphasis of the legal profession was placed on the written law with no role, or only a minor one, for interpretation.42 Rodin explains that, for over 50 years, the development of law in the Southeast Europe was facilitated by:

an understanding of law as an autonomous science, and an understanding of the task of jurists, both practitioners and legal theorists, as finding the ‘right answers’ for all legal questions exclusively within the legal system, regardless of social reality.43

This static understanding of law had a huge impact on how the judicial profession in the Southeast parts of Europe at the time was viewed. More precisely, legislative sovereignty was put on a pedestal, and law ‘operated with the notion of unity of state power, not the separation of powers’.44 Indeed, in the Communist legal systems, ‘judges had no discretion at all, even within the bounds of the law’,45 and so both the legal texts, and the judiciary applying these, were understood to operate void of their social context.

In Kühn’s view, judicial discourses in the post-communist European states still adopt formalist understandings of the law, although these are ‘often clothed in a new legal vocabulary’.46

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