Rule of Law and Political Culture in the New EU Member States: Some Remarks Ivars Ijabs, University of Latvia

Introduction The rule of law has been one of the main elements of the democratization processes in postcommunist Europe. One of the main preconditions for accession of the ten Eastern and Central European countries to the European Union has been a broad consensus about the need of judicial independence, effectively guaranteed human rights, as well as constitutional limitations of state power and a robust combating of corruption. In this sense, the rule of law is the main ingredient for what some scholars call the ‘civilizing’ process1, involving the development of liberal democratic politics and socially responsible market economy. At the same time it is important to see that these processes are deeply influenced by a particular political culture of each country, which continues to work also after the ultimate success of the accession process. The establishment of the rule of law cannot be treated separately from broader social and political contexts, historical legacies and international orientations. These elements interact with the newly established legal regulations and norms in many different ways, both promoting and hindering their becoming an organic part of the social life. In this paper I am going to address those changes in political environment that have happened after the two last enlargements of the European Union in 2004 and 2007. On the one hand, the impact of the pre-accession period in the new member states has been pretty similar. They all have been subjected to the demands, control and assistance from Brussels in order to achieve their compliance with basic EU standards. On the other hand, it is difficult to talk of any clear and unambiguous trends that could be easily identified in all new EU member states after the accession. All ten former post-communist new members have different political and justice systems. They also have different cultural backgrounds and not always identical international orientations. All these factors contribute to the differences among the countries. At the same time it is possible in all countries to detect visible changes in the perception of rule of law after 2004, obviously related to the end of the preaccession period and the so-called democratic conditionality. A Full Circle? During the last couple of years some sceptical voices have been heard about the state of rule of law and democracy in the region. An issue of Journal of Democracy was published in 2007 under the title “Is Central Eastern Europe Backsliding?” So, sociologist Jacques Rupnik wrote in 2007: “Before becoming EU members, many countries appeared to be moving toward liberalism. But their current message to Western Europe seems to be, “Now we can show you who we really are.” Indeed, one senses a curious satisfaction in the capitals of former Warsaw Pact countries at joining Europe in order to oppose those who, for half a century, built a European identity without them – those who long spoke on behalf of Europe without taking Eastern Europe into account.”2 At the moment, when Rupnik was writing these words, the situation didn't seem so bad. After all, none of the new member countries had experienced significant breaches of the rule of law, and certain “tiredness of reforms” after the EU accession could be to blame. However, the new member states were harshly hit by the world economic crisis in 2008. It seems to have affected also the rule of law in these countries. Serious economic problems often tend to weaken the rule of law in new

Wydra H. (1999) Democracy in Eastern Europe as a civilising process. In: Smith, D., Wright, S. (eds.) Whose Europe? The Turn Towards Democracy. Oxford: Blackwell.

Rupnik J. (2007) Popular Front. The New Republic, 19-26/02/2007, pp.12-14 at p. 13.

the rule of law. The European Union mainly uses the first. This seems to be true in Central Eastern Europe. European conditionality Before turning to these changes it is necessary to discuss briefly the topic of conditionality. but problems tend to persist. despite twenty years of (rather) successful democratization. it can inflict some extra punishment or positively support the compliance in order to decrease its costs for the disobeying state. still prevail in many countries of the region. finally. and. Paper prepared for Workshop 4. At the same time. This impact was particularly outspoken since 1997. where the European Council established the “stability of institutions guaranteeing democracy. dealing prominently with questions of democracy. 22-27 March 2002. which. This policy has some clear failures on its account such as Belarus. association agreements and. Already since 1989 these instruments have been tied to the fulfilment of certain standards of human rights and democracy. Engert S. full membership). or. It has been generally reluctant towards participation in direct coercive measures. as well as denial of the chance to upgrade the institutional ties with the EU. There are different competing versions about the impact of the EU on the democratization processes in post-communist Europe.democracies. There have been two main instruments of conditionality – external assistance (Tacis. in addition to withdrawal of reward. human and minority rights. Knobel H. The most telling examples here are Slovakia and Latvia. state institutions and politicians. who both had relatively severe problems with democracy and rule of law during the pre-accession 3 Cf. before turning to these attitudes. without much of pro-active action. or perhaps the EU has just ‘helped’ to implement measures regarded as necessary by future member states themselves.3 In order to make the country accept certain conditions an international organization can either withhold some previously promised reward (e. (2002) The Conditions of Conditionality. Schimmelfennig F. The main instrument of conditionality seems to have been withdrawal of assistance. Yugoslavia in 1991). after reaching the highest point ever in 2007 in the category “Judicial framework and independence” (2. rule of law. The idea of international organizations influencing individual states peacefully in order to motivate them to obey certain norms and demands is by no means new. Several types of conditionality can be distinguished. also the new Member States cannot be regarded ipso facto as success stories – the compliance has been effected. ECPR Joint Session of Workshops. later. In a few cases it has suspended already existing agreements (Romania in 1989. Turin.. since they create additional pressures to bend or break the law by private individuals.g. reaching the level of 2001 again in 2009 (2. According to the latest issue of Nations in Transit of the “Freedomhouse”. However. These standards have become more stringent with the increasing number of the countries wanting to establish ties to the European Community.13).. The most important point was reached in June 1993 at the Copenhagen summit of the EU. There are several instances where EU has used its sanctions. the membership or material assistance). reactive type of conditionality. “Enlargement and European Governance”. The Impact of the EU on Democracy and Human Rights in European Non-Member States. . In particular. human rights and respect for and protection of minorities” as the necessary political condition of accession to the EU. My thesis says that this decline of the rule of law has been determined not only by economic factors. when the European Commission started to monitor the developments in candidate countries in its annual reports. it is necessary to say a couple of words about the 'civilizing' impact of the EU. but also by certain political attitudes.. Phare programmes) and institutional ties (trade and cooperation agreements. the average evaluation of the rule of law among the new member stats has steadily declined after that. the European Union.33). it has been asked what form this impact has taken and whether the liberal democratic norms have been ‘forced’ on the candidate countries by using the powerful carrot of membership.

Like Slovakia. commitment of elites. Different variables have been tested. frequent use of this article for ‘civilizing’ purposes is very unlikely. which brought the pro-European Miroslav Dzurinda’s government to power. social salience of the European question. which introduced very restrictive naturalization procedures for the so-called ‘Russian speakers’. It also tried to politicize the public administration. former Soviet citizens living in Latvia. Of course. manifest and binding results of conditionality. This lack of . It also works. as well as of OSCE. was changed in 1998-99. the restrictive citizenship policy. virtually no reaction on the government’s side. Conditionality is not exercised only through official demands and declarations. The EU conditionality met a more favourable situation in Latvia. It came to concrete enforcement only in 1997. There are different explanations for the successes and failures of the EU conditionality. because the political costs involved are very high for the EU and the procedure itself is very long and complicated. i. through unofficial bargaining and lobbying. However. The situation was finally solved by the parliamentary elections of 1998. one cannot deny the civilizing and pacifying impact of the EU in general. The Latvian parliament and government largely ignored assertive recommendations of the OSCE High Commissioner of National Minorities about liberalization of citizenship policies. So there are very few formal mechanisms that could provide any kind of effective conditionality to the new Member States. respect for human rights and fundamental freedoms. Whatever the right answer is for any particular country. when the future membership in the EU was at stake. did not manage to influence Mečiar’s behaviour directly during his term in power. when the Commission decided not to include Slovakia among countries invited to begin their accession negotiations. where it succeeded in influencing the citizenship and language policies in accordance with basic standards of human and minority rights. if it risks a serious breach of “principles of liberty.. One should also not ignore the unofficial or semi-official civilizing effects of the possible EU accession on the politicians in candidate countries. democracy. perhaps even more efficiently. it followed the recommendations of the Council of Europe. In this case the conditionality worked well due to successful governmental bargaining with international organizations. which addressed the proEuropean self-understanding of Latvian society. The EU reacted timely to the rise of “Mečiarism” by expressing its concerns about the authoritarian developments in the country.e. and EU conditionality functioned here largely by means of social pressure. however. However. It is possible to withhold the financial aid of the EU. like the Slovakian and Latvian cases. which allows the membership of a Member State to be suspended. however. like costs of compliance. when all ten candidate countries have become full members of the EU. harassed opposition politicians and ignored decisions of independent courts. which was the case of Bulgaria in July 2008 because of ineffective struggle against corruption. Policies were changed largely through elections. as well as the language policy. and the rule of law”.period. widely used during the negotiations. Latvia was warned several times about its deficient citizenship policy. perhaps less widely recognized. harassed independent media and oppressed Slovakia’s large Hungarian minority. There was. After full membership Now. there still is also the Article 7 of the Lisbon treaty. Problems in Slovakia began in 1994 when Vladimir Mečiar’s ruling Movement for a Democratic Slovakia adopted an authoritarian style of government. There are more cases of EU conditionality. as well as to the international social pressure. The pressure of the EU. The EU did not act alone here. economical interdependence and others. It concentrated power in the hands of the Prime Minister. The ‘civilizing’ impact on Romanian president Iliescu in the early 1990’s must be mentioned. as well as the ‘moderating’ effect on Moldovan communists or Hungarian nationalists. There have been clearly visible. the role of conditionality has become limited.

and this has been partly caused by the process of accession to the union. This event caused widespread indignation among the parliamentary opposition. Great political goals of these countries are fulfilled – they have become full members of the EU and NATO. 21. There are two dimensions of changes regarding the rule of law in the new EU member states: institutional and political. . being answerable to governments in all Central Eastern European Member States. pp.instruments for enforcing the rule of law contrasts manifestly with growing demands on future members (Croatia. One of the best known cases is Hungary in 2006. Since opposition does not participate in the government. too. The discourse of the “voting machine” concerning the Latvian parliament is a good example. (2007) The Quality of Democracy after Joining the European Union. The Role of Constitutional Courts 4 Zielonka J. it has lead to more freedom from external conditionality. after acquiring full membership the situation has changed – and not always positively. however. however. parliaments in the new member states are very weak. 1. This initiative was followed by the leakage of an audio recording in which Gyurcsány admitted that the previous Socialist government had not done anything worth mentioning and that his government had been lying to win the elections. Moreover. Now parliaments demand their original rights back – in many different forms. Parliaments. which later spilled over to wider society. Governments. have effectively become the most important arenas of decisionmaking. The political dimension involves changes in political decision-making and orientations that can be observed in the new Member states. On the one hand. On the other hand. and the end of it has lead to significant transformations. which shifted the balance of power towards the government. There are also other countries where the self-assertive behaviour of the government has lead to the increased salience of the oppositional role of the parliament after the EU accession. East European Politics and Societies. usually tend to preserve their capacities. on the other hand. Macedonia) who must comply with EU demands in order to acquire a credible chance for membership. parliaments from Eastern Europe had to hastily adopt a vast body of European laws with little discussion and opportunity for amendments to take account of local concerns and peculiarities. with national legislatures playing only a supervisory role. The institutional dimension involves processes concerned with the completion of reforms aimed at the harmonization of national institutions with the workings of the EU. No. Jan Zielonka writes: “To start with. Turkey. 169. Over the past several years leading to the EU’s accession. The reform process itself has been very demanding. 162–180 at p. it has produced also a certain kind of disorientation and confusion. it often wants to diminish the role of government and return the parliament to the position of the main decision-maker. Governments and ruling coalitions. That can be said especially about the role of parliamentary opposition. have to some extent become tired of their previous function of rubber-stamping government proposals. The government was also the main negotiator with the EU. It was mainly due to the need of acquisition of the acquis communautaire. Vol. This has lead to sharp conflicts between governments and parliamentary oppositions. that some sort of ‘soft’ conditionality would still be beneficial for most Central Eastern European Member States in order to further the rule of law and democracy in these countries. The institutional dimension Relationship between parliaments and governments: The pre-accession period in most candidate countries was marked by an increasing role of the executive. which was not answerable to the parliament in any way.”4 The problem is that this dominance of the executive has lead to a distorted balance of power among different branches of government. advices and limitations. where Prime Minister Ferenc Gyurcsány of the Hungarian Socialist Party established the socalled development cabinet for the management of European funds. The problem is.

Constitutional courts have gained the influence due to their function of determining the constitutional position of a Member State towards the EU law. in some cases tend either ignore the court decisions. from acquisition of the full EU membership.”5 This tendency often leads to tensions between courts and legislatures. parliamentary majorities. but also from the type of arguments used: appeals to very vague. on the other hand. .Constitutional courts in the new EU Member States are very important institutions. Indeed. 10. when the pressure has significantly decreased. There are several examples of ‘strategic’ partnerships of constitutional courts and parliamentary oppositions. under the available valid conventions of judicial reasoning. Poland or Czech Republic is great even for Western European standards. to put it more accurately. or to subordinate constitutional courts to their own political control. It also affected the behaviour of politicians. 5 Sadurski W. Parliamentary majorities. July 2004. pp. the influence of the constitutional courts in Hungary. and their political influence has even grown after the accession. an upholding decision was a real option to the courts. Now. Weakening of pre-accession consensus on human and minority rights. which question the meaning of parliamentary democracy in general. The best-known case is Poland. In 2009. It showed an incessant will of politicians to influence the Court's decisions. the Constitutional Court of Slovakia was involved in several highly political debates concerning the court system and expropriation laws.most dynamic and powerful of the courts in the region [move] in the direction of a marked judicial activism. in particular. to adapt their doings to their expectations. Its verdicts were also fulfilled unwillingly and with significant delays. Taking into account the weakness of legislatures in some new Member states. indeterminate constitutional ideals and values (such as human dignity or Rechtsstaat) and proclivity for constitutional balancing in which controversial judgments of policy figure prominently. 371–401 at pp. This increased salience of constitutional courts leads to visible changes regarding the relationship between legislatures and the court.. Wojciech Sadurski writes: “. This is clear not just in virtue of the significance of some laws being struck down by the constitutional courts in the region. but also making suggestions for further changes and improvements. or. which has direct effect and supremacy over the national constitutions. Vol. elite behaviour that have happened after the accession. (2004) Accession’s Democracy Dividend: The Impact of the EU Enlargement upon Democracy in the New Member States of Central and Eastern Europe. which eased some of the restrictions of the pre-accession period. many politicians in the new Member States feel themselves much freer to follow their own goals in their own manner without paying much attention to the reaction of European Commission and other EU institutions. They cannot be distinctly separated from transformations of the institutional environment. There is a somewhat similar situation also in Latvia. 389-390. 4. Constitutional courts are becoming something like “second legislatures”. not just reviewing the already passed legislation. The verdict regarding the territory of the Riga Free Port January 2008 is a good example for that. understood as willingness to strike down important laws even if. However the ‘civilizing’ effect of the conditionality affected much more than just legal and institutional regulation. No. This task of reviewing the position of a Member State towards EU law makes constitutional courts even stronger actors in political life. where politicians openly contest the decisions of the Constitutional Court. European Law Journal. Political Dimension By political dimension I mean here those changes in the political culture and. where in 2006 and 2007 the Constitutional Tribunal was constantly accused of political bias and opposition to the government decisions. who had to take into account the possibility of ‘being watched’ by European institutions and therefore. especially.

but also widely accepted.. was illustrated by 2010 electoral success of the Movement for a Better Hungary (Jobbik).In several new Member States radical. (2006) Danger and opportunity in Eastern Europe. in some of these countries is increasingly understood in a particular. especially. Until 2004 they were usually treated just like extreme parties were treated in the West. It is not surprising. if not openly compromised. that the period of rapid transformation provoked an increasing demand for traditional forms of community and authority. Of course. So there is very 6 Larrabee S. the parliamentary majority. Many forms of social solidarity and identity have been destroyed and damaged during the pre-accession period. John Locke) treats majority as a simple mechanism of decision-making. anti-Semitic and homophobic political forces have not only gained support. Also in Slovakia the previous ruling coalition. therefore. mainstream moderate parties regard them as worthy coalition partners. In some cases the secular nature of the state has been questioned. constant uncertainty and individualism. Elements of xenophobic nationalism have also become a part of ‘normal’ political discourse in several countries. like human rights and tolerance are often regarded as secondary for political activity. a far-right party with some racist sympathies. Family. in Romania and Bulgaria several parties are successfully competing for votes with anti-Semitic and anti-Roma slogans. nation and religious community are regarded as sources of stability in the world of globalization. . In Latvia. often stemming from the public's alienation from politics. which openly expressed not only ultra-conservative views on family and sexual morality. which represents the Good and the Right. If the classical liberal democratic theory (e. They have often been replaced by social atomization and materialistic individualism. it is also infallible. many political actors in the new Europe see it as a kind of moral authority. Similar tendencies. Liberal democratic values. Democracy. The previous government of Poland was formed in 2005 by the moderate “Law and Justice” (Prawo i Spraviedliwosc) party in coalition with agrarian populists of the “Self-defence” (Samooborona) and ultra-conservative “League of Polish Families” (Liga Polskich Rodzin). however. there have always been extreme political forces in most countries – like Hungarian fascists or unreformed Czech communists. as radical parties in the West – like Jörg Haider’s “Freedom Party” faced in Austria. Majority is omnipotent and omniscient. however. 10. It would not be correct to pin down all these phenomena to the expiration of the beneficial effects of the EU conditionality. After 2004. They usually faced marginalisation of the same kind. 117-131. strong anti-Russian sentiments have dominated the election campaign of 2010. homophobic attitudes and religious fundamentalism have a wide currency in several new Member States after the EU accession. Ideas about the fundamental supremacy of religion. xenophobic. pp. One should mention also the “reform fatigue”. led by Robert Fico. The member of Slovak ruling coalition Jan Slota openly declared his wish to send Slovakia’s Hungarian minority “to the Moon with a one-way ticket”. According to this view.11/2006. Foreign Affairs. Majoritarianism It would be misleading to suggest that Central Eastern European Member states are not fullyfledged democracies. if some political force has a majority. but are also regarded as worthy coalition partners by previously ‘moderate’ parties. in Latvia. it is allowed to do anything it wants. majoritarian way. after the election of the 10th Saeima in 2010. Ultra-conservative conceptions of family and emancipation of women. nation and family over individual freedom are not just expressed.g. a strong pressure has been exercised to include in the ruling coalition the right-wing radical party VLTB/LNNK. consisted of socialists (Smer-SD) and Peoples Party (ĽS-HZDS) in coalition with right-wing radicals of the Slovak National Party. but also scarcely veiled anti-Semitism and anti-communist conspiracies. F. but also for social and cultural reasons. In Poland the best recent example was the government-backed radio station Radio Maryja.6 The necessity to modernize many spheres of life has been very demanding – not only for economic.

Politically motivated recruitment of judges has taken place in Slovakia.. thus endangering the freedom of the press and expression. e. In the first place one should mention the court system. Unclear and politicized libel laws and court practices often undermine the press freedom. The problem is. Romania. Also in Latvia there have been serious efforts to influence the work of public media. undemocratic in their internal structure. and they often serve the interests of politicians rather than the public interest. These features suggest that the concentration of power can lead to illegitimate influence of non-political actors. Concentration of power Widespread belief in the omnipotence of majority in several countries has lead to attempts to concentrate the power in hands of the ruling coalitions. Also procuracies and anti-corruption agencies have been constantly attacked by politicians – the case of Latvia is not unique here. There are. The head of the Romanian anti-corruption agency Daniel Morar is likely to be replaced in August 2008 for “political” reasons. where. Also the previous Polish coalition. Poland. whereby some politicians have openly expressed their wish to subject courts to their own political control. The same situation was recently observed in another corruptionridden new EU Member State. perceived themselves as moral revolutionaries with a mandate of majority. is a particularly interesting example of the “moral force of majority”. being the biggest and most influential of the new Member States. European People’s Party and others. which is crucially important for democracy and the rule of law. appeals of the State President Laszlo Sólyom did not prevent Prime Minister Gyurcsány from remaining in his office. as well as highly dependent on economic elites and their interests. The best-known example for such attitude is the behaviour of Hungarian Social Democrats during the crisis of 2006. unfortunately cannot be regarded as . An important reason for concern is also the shape of political parties in Central Eastern Europe. Estonia’s Bronze-soldier case of 2007 must also be mentioned here. Also in other countries the command of majority is increasingly treated as license to neglect any objections and opinions of opposition. however. and Poland. as well as of other significant social actors. The case of the much contested media law is The most recent examples here are the notorious media legislation in Hungary.little need of discussion between majority and minorities. The impact of European transnational parties. Street protests. which actually initiate these processes of concentration. instructing the public television by telephone about the acceptable coverage of his foreign visits. In Slovakia the Prime Minister has directly interfered with the work of public media. Also public media and their supervision boards have been under attack in several countries. In Lithuania in 2006 there was an attempt to pass legislation forbidding journalists to take pictures of private property. This trend directly affects the rule of law and the principle of division of power. This trend of concentration of power and politization of independent institutions is particularly worrying not only because it directly endangers the principle of division of power. where available parliamentary majority is regarded as a sufficient reason for all possible decisions.g. regarding the postponement of the demonstration of the critical TV documentary “Putin’s System” in March 2007. He still had the support of parliamentary majority and that was enough to remain in power. Such legislation hinders media to fulfill their function of enforcing transparency and accountability of public officials. like Party of European Socialists. the government tried to subjugate the public broadcasters directly to the Ministry of Finance. Many independent institutions in the new Member States have been politically attacked. broad social resonance. despite his good record and the pressure from the EU. more examples of smaller scale. Poland and Czech Republic. that political parties actually have been least touched by the EU conditionality and support. not as one political force among others. in 2009. Parties tend to be small in membership. led by Jaroslaw Kaczynski. which has been concentrating on NGO’s instead.

”7 At the same time. as the history of the 20th century shows. During the last twenty years the new EU member states have come through very intense transformation processes in a very short period of time. human rights. This underlines once again the importance of legal instruments on the European level. Kubik J. Vol. the weakening of conditionality is fully justified. . and ethnic minority rights have gone hand in hand with better state capacity. to ensure further consolidation of democracies in the region. Vachudova M. The track record so far is excellent: every democratizing state that has become a credible future member of the European Union (except perhaps Serbia) has made steady progress toward liberal democracy.important factors of democratic conditionality. It is not surprising. improved welfare. 1. Jan Kubik and Milada Anna Vachudova. (2007) Democracy in the Post-Communist World: An Unending Quest? East European Politics and Societies. 21. Moreover. because their impact on political parties in the new Member States has been relatively weak. One can agree with Grzegorz Ekiert. 22. as well as poses questions about the scope of European legislation in securing the rule of law and basic rights of citizens in new Member States. the consensus on the importance of the rule of law and democratic norms has weakened. Democracy and the rule of law have not yet become an integral part of everyday life in these countries.. this influence has been decisive for the present state of democracy and the rule of law in the region. who write: “The European Union may be presiding over the most successful democracy promotion program ever implemented by an international actor. For all new Member States these factors have been clearly beneficial during the last fifteen years. A. However. democracy in Central Eastern Europe is very much dependent on European and other international factors. pp 7–30 at p. But after enlargement the political conditionality no longer works in the same manner. Nevertheless.. and better economic performance. Taking into account the progress made by these countries. Conclusions It is not possible to deny the fundamental positive influence exercised by the European Union on their future member states. 7 Ekiert G. No. there are significant symptoms showing that due to the weakening of the EU conditionality and economic crisis. because these principles cannot be fully established in such a short period of time. some form of motivating influence and monitoring of basic democratic principles would be desirable. Improvements in democratic standards.