Description
Why, despite significant EU assistance and institutional change, do concerns about judicial independence in the Western Balkans remain unabated? The EU’s preferred method of bolstering judicial independence in third party states has been the establishment of highly autonomous judicial councils. Such councils are designed to remove the power of judicial appointment from the Executive (usually the Ministry of Justice) and instead devolve this responsibility to a body composed of judges, judicial professional associations, and representatives from the legislature. This type of autonomous body follows the so-called “European model” of judicial independence found in Southern European EU Members, namely France, Italy, and Spain. However, despite extensive EU conditionality and assistance around judicial reform, levels of perceived judicial independence have not changed over the past decade in the Western Balkans.
Focusing on the case of Serbia, we draw on two conceptualisations of judicial independence in order to try to better understand the apparent lack of progress. First, Ishiyama and Ishiyama Smithey distinguish two dimensions of judicial independence: impartiality (“fairness”) and insularity (“no external influence”). On the other hand, the annual EU Justice Scoreboard measures judicial independence via structural independence (similar to insularity) and perceived independence. We argue that despite the substantial augmentation of judicial independence through institutional reform to improve insularity / structural independence, attention to “fairness” has been neglected. Relatedly, measures gauging perceived judicial independence conflate insularity and fairness.
To disentangle and measure attitudes towards fairness, the study used vignettes developed by Niemi et al. – who distinguish between fairness based on charity, loyalty, or impartiality - to conduct a survey experiment administered to Basic Court judges in Serbia. What our research thus offers is a more nuanced assessment of the situation in Serbia, but also highlights the limitations of exogenous (EU) strategies to reform judicial practice based on a particular measure of ‘independence’.
