ABSTRACT
Before proceeding with an empirical analysis of the reform of judiciaries in five countries under scrutiny, it is necessary to provide a historical overview of the evolution of the judiciary branch in the region. The aim of this exercise is to establish if and what kind of fundamental cultural predispositions play a role in the current reform of the judiciary branch and, consequently, shape the relationship between SEE countries and the EU, in this regard. As already mentioned, previous research related to the CEECs has already established the strong legacy of communist rule in the administrative sphere, so that the domestic cultural understanding and informal institutions are key mediating factors in determining whether domestic actors engage in the process of Europeanization.1 In addition to this common characteristic, the SEE region has suffered from the more recent consequences related to the 1990s armed conflicts that influenced both human and technical capacities of the existing judiciary. Furthermore, the lack of absorption capacity, on the side of domestic administration, also needs to be addressed from the historical legacies perspectives. Namely, administrative and technical capacities, budgetary constraints, and levels of societal mobilization that interplay with unfavorable historic legacies can influence compliance with EU demands. Finally, legacies constitute obstacles in compliance, even in cases where the candidate countries remain dedicated to socializing EU norms. Following more than five centuries of rule by the Ottoman and Austro-
Hungarian empires over the territories which comprise the present day Southeastern Europe, the judiciary and embryos of constitutionalism in contemporary Bosnia and Herzegovina, Kosovo, Macedonia, Montenegro and Serbia had its roots in the emergence of national independence movements throughout the most of the nineteenth and early twentieth century. The initial development of the judiciary branch of government, in these countries, was influenced mostly by the legal traditions of Austria, Germany, Hungary and France, which were introduced to the region by the returning young scholars after completing their education at the prestigious European law schools. For example, the 1844 Serbian Civil Code was based closely on the French Code
Civil along with the admixture of German and Austrian law, while in today’s Vojvodina Hungarian customary law is utilized. Ever since the establishment of the national judicial apparatus in South
Eastern Europe, the judiciary has been exposed to a perpetual flux between the tendencies to create an independent and moderate judicial system on one hand, and counter pressure coming from the local authoritarian rulers attempting to impose political hegemony over state institutions, on another.2
The most significant and long-lasting influence on the WB judiciary is the legacy of the 40 year long communist rule in Socialist Federal Republic of Yugoslavia (SFRY),3 which was the common state for all countries under research, or more precisely, all the remaining South East European states that are still not part of the EU, excluding Albania. The role and functioning of the judiciary was neglected in research in the former Communist countries. Most of the contemporary studies treated the judicial behavior simply as an “auxiliary and highly manipulated aspect of overall party control,”4 which therefore did not require any systematic legal analysis. Furthermore, scholastic attention was diverted from substantive analysis of legal and judicial developments in Eastern Europe due to the perception of the judiciary as a political instrument in the hands of the regime during the mobilization phase of Communist parties. The Yugoslav legal system was no exception, despite its early departure from the Marxist-Leninist model of judicial development. Finally, several other original features of the Yugoslav communist system, such as self-management, federalism, the nonalignment movement etc., additionally dispersed contemporary scientific attention from the analysis of the judiciary. The analysis of the judiciary during communist Yugoslavia followed the
dynamics of the country’s structural reorganization and decentralization based on the gradual progress of the economy. Although economic changes were the root cause of Yugoslavia’s constitutional changes, from 1946 until 1974 important innovations introduced in the field of the judiciary could be observed as well.5
