Neighbourhood countries: persisting old patterns of behaviour
The two Neighbourhood countries Ukraine and Moldova did make some progress on the judicial impartiality dimension between 2002 and 2008. Most indicators, however, remain at low absolute levels (see Table 7.2).
Ukraine experienced some progress after the government changed following the Orange Revolution in December 2004. In particular, the legislation for the independence of the media was improved upon after years of control and censorship of the media under the Kuchma regime. While there have been some positive short-term trends directly after the Orange Revolution, constant political power struggles over the new constitution between reformers and anti-reform forces have led to former patterns of behaviour, such as the misuse of the judiciary, law enforcement institutions and the security service by the political branches (Council of Europe 2007; Solonenko 2009: 721). The misuse of the judiciary to promote political interests has been employed by both reform and anti-reform actors, a behaviour suggesting that, regardless of who is in power, old governing practices die hard. Political struggles have, thus, produced instability and culminated in a constitutional crisis in April 2007.
Ideological differences between the leading parties as well as within the opposition party block hindered the creation of a coherent strategy for rule of law reform. The lack of consensus and reform progress has left the country with a deficient and inconsistent constitution and without an efficient system of checks and balances (Parliamentary Assembly 2008: 2). As regards the fight against (judicial) corruption, the Orange Revolution gave a new impetus that led to the ratification of several international anti-corruption conventions and amendments of relevant legislation in 2006. However, the practical implementation of anti-corruption measures was hindered by on-going political struggles and, so far, no tangible results have been made.
Moldova has partly overcome earlier political divisions and has, in the shortterm, created a political consensus for legal reforms, in particular after the crucial elections in 2005, which translated into an overall orientation towards the West. Judicial independence ratings for Moldova improved as some of the decisions of the constitutional court were attributed a ‘remarkable degree of independence’ (Bertelsmann Stiftung 2008: 8). However, measures to increase judicial independence are sporadic and incoherent (Vitu 2009: 370). As for the fight against corruption, Moldova has continued to fight corruption through formal legal means. The institutional framework on corruption was also adapted and several international conventions on the fight against corruption and organized crime were ratified.
Regarding judicial impartiality, politics and the judiciary continue to be influenced by powerful veto players (e.g. business elites and the military) in both countries. The state is captured not only by domestic players, but in some cases also by the continuing strong influence of Russia (Solonenko and Jarabik 2008; Bertelsmann Stiftung 2010). In Ukraine and Moldova, law and order has not experienced any significant evolvement, although these countries had reasonable levels of personal safety and order already in 2002 (USAID 2005).
In sum, various reports and the indicators used in Tables 7.1 and 7.2 allow me to identify some common trends in all six countries under review: first, judicial capacity has improved the most in those countries that have been exposed to strong EU conditionality (Romania and Bulgaria) or have been the focus of the EU and other international donors’ attention (e.g. Serbia and Ukraine). Second, the scores of the judicial capacity dimension have improved to a greater extent than those of the impartiality dimension (except for Albania). This suggests that donor and
EU-driven rule of law reforms have not succeeded in transforming existing power structures and/or reduced the influence of political, economic or criminal elements. The next section gives some explanations for this failure.
