An RLA’s View From the Balkans:

Serbia’s Pursuit of European Integration via Anti-corruption Measures

By Eli J. Richardson

Feb. 2, 1012

The fight against corruption is not one-size-fits all across the globe. Various countries take various approaches, some more effective than others. A country’s approach is shaped by its particular context (its culture, experience, legal system, international relations and policy objectives) and comprises particular components (agencies, laws, training, financial resources and adopted international conventions) chosen by the country. When the context changes, the components change – ideally for the better. And because policy objectives can change faster than other aspects of the context, it is policy changes that most rapidly can transform the country’s approach to anti-corruption. This phenomenon is exhibited by the nation of Serbia, located in the so-called “Balkans” region of Southeastern Europe. As I observed first-hand while working in Serbia’s capital, Belgrade, for the U.S. Department of Justice (DOJ), new policy thrusts can rapidly spawn new anti-corruption programs having, at least on paper, myriad specific components. The question then becomes whether the country will actually and effectively implement the components in furtherance of its new policy.

My experience in Serbia spanned from early 2009 through late 2010, during which time I was on detail from my position as an Assistant U.S. Attorney in Nashville, Tennessee to the U.S. Embassy in Belgrade to serve as the Resident Legal Advisor (RLA). DOJ stations RLAs in a relatively small number of developing countries. Wherever one exists, the RLA wears a variety of hats, and thus the position is hard to describe succinctly. The RLA’s core function is to provide training, technical assistance, and advice to support the host country’s legal reforms. To this is appended an unofficial but vital function: assisting in liaisons of all kinds with high (and sometimes the very highest) ranking officials in the host country’s law-enforcement and judicial sector; this could mean anyone from the national prosecutor general to regional prosecutors; the head of the national supreme court to regional judges; ministers of justice to assistant ministers of justice. In addition, the RLA can be required to liaise with the head of national judicial training academies and – importantly for our purposes here – national anti-corruption agencies, which are often found in countries around the world though not the United States. In doing all of these things, the RLA acts in close consultation with other DOJ officials and Embassy leadership.

An RLA’s efforts naturally are focused on the host country’s most pressing topics, and in Serbia there were four: war crimes (many of which are still being investigated from the Balkans wars of the 1990s); broad-based overhaul of criminal procedure; organized crime; and corruption. Of these, corruption hardly took a back seat. As discussed below, the Serbia RLA’s – my – involvement in corruption issues was necessarily up-close and personal, and also crucial.

This discussion, however, must await a description of the context of the fight against corruption in Serbia. Serbia was (and is) a developing country. Its existence as an independent country began in 1991 following the breakup of the former Yugoslavia, which fragmented into Slovenia, Croatia, Macedonia, Bosnia & Herzegovina, and Serbia & Montenegro. In 2006, Serbia & Montenegro split into two separate countries, leaving Serbia on its own. Despite its fascinating capital of Belgrade, an enthralling culture, myriad of wonderful citizens, and a legacy of relatively high diplomatic clout and living standards under the Yugoslavian regime of Marshal Josip Broz, Serbs have had a fairly rough go of it since 1991. There are a variety of reasons for this, and the major ones relate primarily to the brutal wars of the early 1990s as well as NATO’s 1999 aerial war against Serbia & Montenegro in response to the Belgrade government’s aggression against ethnic Albanians in Kosovo in southern Serbia.

The fallout from these wars was severe: major damage to key infrastructure nationwide, particularly in Belgrade; associated sanctions that crippled the economy, international isolation and stigmatization, thriving organized crime, and lack of faith in key governmental institutions. Nevertheless, not long after the fall of Serbia strongman Slobodan Milosevic in September 2000, Serbia could fairly be described as a functioning republic with a democratic (if imperfect) system of elections and a record of carrying them out with some credibility.

To simplify a complex story, fast forward to July 2004. In that month, Boris Tadic, a former psychologist and head of the pro-European Democratic Party, became President, an event that helped enable pro-European government policy. Then, in elections held in February 2008, Serbia (now disunited from Montengro) held elections at which Tadic was re-elected and a pro-European parliamentary coalition led by the Democratic Party was swept into power. As noted in a report of the European Union, these elections “confirmed Serbia’s European aspirations.”[i] In short, beginning with Tadic’s assumption of the presidency in 2004, and then continuing and accelerating after the February 2008 elections, Serbia’s policy changed, moving distinctly towards European integration.

To be sure, the coalition had many objectives, including, for example, maintaining (or regaining, depending on one’s perspective) Kosovo as a part of Serbia. However, the primary objective was moving Serbia closer to Europe, and indeed eventually into the European Union (EU); the government in Belgrade was keen to obtain the political and economic benefits associated with full membership in the EU, the confederation of 27 European states.

Upon my arrival in Belgrade in March 2009, I realized how strongly this objective was driving the policies and actions of the coalition government. This was true across the full range of governmental activities, and corruption was no exception. There was a clear connection between fighting corruption on the one hand, and the objective of drawing Serbia closer to Europe and acceding into the EU on the other. Simply put, the EU had certain expectations with respect to anti-corruption measures, and those (not to mention all kinds of other) expectations had to be addressed if Serbia was to gain acceptance into the EU. Under the EU’s standards for accession, successful candidates must have achieved, among other things, stability of institutions guaranteeing democracy and the rule of law – achievements that hardly can be deemed satisfied absent a satisfactory record in combating corruption. As noted by the Serbian Ministry of Justice in November 2008, the fight against corruption “is a condition for acceleration of the association of the Republic of Serbia with the EU, which is in the interest of Serbia’s citizens.”[ii]

In my experience, Serbs are fairly cynical about their government and government officials and pessimistic about corruption in their society. They have a point; Serbia is not New Zealand, and corruption of all kinds is common. However, the situation could certainly be worse. Serbia has hovered in the eighties in the Corruption Perception Index,[iii] meaning that its citizens give it fairly dismal marks in terms of how they view the nation’s corruption problem but that more than half of all countries are rated even worse by their respective citizens. In my view, corruption is pervasive in Serbia, but unlike some countries, Serbia does not give the impression of being absolutely saturated with corruption.

So what is a country to do when it has a major (if not desperate) corruption problem and its policies dictate that substantial progress (actual or perceived) be made in the fight against corruption? Serbia undertook many actions. One was messaging and optics for domestic as well as international audiences – for example, hosting international anti-corruption conferences and making strong statements on government websites and other public venues on the fight against corruption. A second was policy and planning: the creation and publicizing of a National Strategy for Combating Corruption and an Action Plan to implement it, for instance. A third was the creation of new government institutions at the micro level; for example, anti-corruption departments within the national prosecutor-general’s office and the largest regional prosecutor’s office.

The most significant initiative was legislative: enacting a sweeping series of reform measures which all relate to the fight against corruption, by fostering weapons for better investigating and prosecuting corrupt acts or preventing them in the first place. The new laws were enacted fairly quickly after the February 2008 elections. Among them were laws creating a national anti-corruption agency tasked with a long list of preventative activities; streamlining the courts and prosecutor’s offices and reforming disciplinary processes for judges and prosecutors; authorizing broader use of sophisticated investigative techniques and cooperating witnesses in major corruption cases; providing for asset forfeiture; providing for criminal liability of legal entities (i.e., non-natural persons such as corporations); and authorizing plea bargaining in major corruption cases.

Particularly with respect to the last four of these legislative areas, the DOJ, and the RLA in particular, had a major role in helping Serbia take these actions. It is one thing to create policies or pass laws, and it is quite another to implement them. U.S. government policy and funding allowed for major assistance to Serbia, largely through the office of the RLA, in implementing these policies and legislation. Accordingly, my office and I were privileged to conceptualize and carry out a variety of assistance activities, including: offering groundbreaking nationwide training courses regarding asset forfeiture, plea bargaining and criminal liability of legal entities; provision of equipment to the specialized anti-corruption departments; specialized anti-corruption training for select officials; participation in training courses on sophisticated investigative techniques; and drafting language for prosecutorial policies regarding plea bargaining and criminal liability of legal entities.

The U.S. role in all of this was huge and substantially contributed towards actual implementation of Serbia’s anti-corruption initiatives. Indeed, with respect to plea bargaining and corporate criminal liability, it is fair to say that the office of the RLA was the sole impetus of implementation. To their credit, Serbian officials accepted the assistance with graciousness and certainly did their part in helping us provide the assistance, a fact which helped avoid any perception that this all was being imposed by the United States government. Such a notion would have been inaccurate in any event; the U.S. government, out of altruism as well as self-interest, may indeed have driven the implementation of components of Serbia’s anti-corruption strategy. However, those components were a direct result of Serbian, not American, policy. The Serbian government adopted a goal of EU accession, and devised various anti-corruption measures to meet that goal. The U.S. was happy to promote responsible components of an anti-corruption strategy, but it was Serbia that came up with those components and the goal that spawned them.

Of course, conceiving a policy, selecting anti-corruption components to advance the policy, and even implementing the components is not enough; real and observable progress must be made post-implementation. Doubtless, the EU wants results – and not mere words or busyness – in the realm of anti-corruption.

In some of Serbia’s chosen areas of reform, quantifiable results already have been achieved. Most notably, presumably driven by a strong financial incentive, the Serbian government quickly employed its new asset forfeiture authority, rapidly seizing tens of millions of euros worth of alleged criminal proceeds. As another example, plea bargaining had begun to occur by the time I left Serbia in September 2010; this is no small matter, as plea bargaining holds great potential to preserve scarce resources for the fight against corruption in Serbia by making the work of prosecutors and judges far more efficient. Nevertheless, in most if not all areas, much remains to be done, both in terms of actually implementing reforms and in beginning to obtain concrete results as a result of such implementation.

This will be where the rubber meets the road as Serbia attempts to progress beyond its current official status of mere “potential candidate” for EU membership. Will Serbia’s anti-corruption reforms stall and thus ultimately fail to serve their primary purpose, promoting the country’s overarching policy goal of achieving EU membership? Or will the new components of Serbia’s anti-corruption regime, fostered by the new policy context, prove successful and thereby help achieve Serbia’s goal? Serbia and the European Union await the answer.

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Mr. Richardson is a member of Bass, Berry & Sims PLC in its Nashville office. He is a member of the firm’s Compliance and Government Investigations practice group. His practice focuses on white collar crime, conducting internal investigations (including Foreign Corrupt Practices Act matters), and defending clients under investigation by the Department of Justice, the Securities and Exchange Commission, and state and other regulators. In addition to years of private practice experience, he has served as a federal prosecutor in two United States Attorney’s Offices and as a special agent of the Federal Bureau of Investigation.

http://www.bassberry.com/erichardson

The views expressed here are those of the individual author writing in his individual capacity and are not necessarily those of the ABA or the Task Force.

[i] “Communication from the Commission to the European Parliament and the Council: Western Balkans: Enhancing the European Perspective,” (May 3, 2008) at 6.

[ii] PowerPoint presentation, “Fight Against Corruption,” November 2008, available at http://www.mpravde.gov.rs/en/articles/fight-against-corruption.

[iii] Transparency International’s annual Corruption Perception Index (CPI), as noted by Transparency International, “ranks countries and territories according to their perceived levels of public sector corruption.” These and other explanatory notes regarding the CPI, as well as the 2011 CPI, are available at http://cpi.transparency.org/cpi2011/results. Significantly, the CPI focuses on the public’sperception, rather than actual facts or incidents, regarding corruption.

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Eli J. Richardson

Eli J. Richardson