Rule of Law Cooperation in Practice

Development Cooperation in the Legal Field

Building wells, renovating schools, securing food supplies – these are the kind of things people most commonly associate with the now outdated term “development aid”. In fact, what is now called “development cooperation” is much more multifaceted and goes beyond technical cooperation. One quantitatively rather small but nonetheless very important area is promotion of the rule of law. Germany has been engaged in this kind of development cooperation for decades, with funding amounting to 1.44 billion euros out of a total of 206 billion euros in development funds between 2007 and 2021.

The German Rule of Law Promotion

Rule of law promotion has gained considerable importance over the past three decades and is now not only carried out in conjunction with other development projects, but often in parallel or entirely independently of them, with its own goals and funding.

While conventional German development aid began in the early 1960s, promotion of the rule of law did not become established as a relevant and increasingly independent field until the 1990s. Previously, especially in the post-war years, the Federal Republic was itself in some respects the recipient of development aid in the area of the rule of law: the Western Allies were involved early on in the drafting of the Basic Law, and the establishment of Germany’s constitutional structures in the administration also took place under their influence. It is precisely the fact that Germany overcame the National Socialists’ “Unrechtsstaat” (unjust, lawless state) that made the country a credible player in the field of rule of law work: the example of the Federal Republic of Germany showed that it was possible to develop a functioning system that is committed to the principles of the rule of law and that works in everyday life. This was confirmed once again in the 1990s with the successful legal integration of the German Democratic Republic (GDR).

There is no generally applicable definition of the term “rule of law”, which is why there is no general definition of “rule of law promotion” either. For this reason, the Federal Government defined the area of German rule of law promotion for itself in the “Strategy of the Federal Government for Promoting the Rule of Law”, which was adopted (for the first time) in 2019 as an underlying guideline for its work in this field. This definition is a synthesis of the concept of “rule of law” as defined by the United Nations and the “specific understanding of the concept of the rule of law” shaped by the German legal and constitutional traditions. This understanding “limits and commits state authority to safeguarding individual freedoms and material justice, in particular by recognising fundamental rights, ensuring the administration is subject to the law and effectively protecting individual rights by maintaining the independence of the courts.”

The goals of rule of law promotion are manifold and the Federal Government considers rule of law promotion a “central instrument (…) in the field of crisis prevention, conflict management and peacebuilding”. In addition to the “establishment and promotion of the rule of law in the narrower sense”, the political objectives include the “fight against corruption”, “human rights” and “international humanitarian law” as well as the “promotion of democracy”. Operational objectives include “building and improving structures and procedures of state institutions”, “supporting legal reforms” and “strengthening the independence of the judiciary”.

In addition to promoting the ideals and values of the rule of law itself, work on the rule of law also has to do with other interests, of course. By promoting the rule of law structures, the aim is to create a framework for a better functioning economy with a view to enabling German companies to invest more easily and with greater security. Economic development can in turn contribute to poverty reduction. A further objective is to improve security in many areas of life through a functioning judiciary and administration. In this way, promotion of the rule of law can serve to reduce the causes of displacement and migration, and it can help advance climate and environmental policy.

In practice, rule of law work takes many different forms. German rule of law promotion can be roughly divided into three areas, which differ both in terms of the (aforementioned) goals and of methods and resources.

At the macro level, Germany tries to use diplomacy to persuade other countries to introduce, observe and implement rule of law standards locally. This is usually done through persuasion, granting economic or other benefits, or through political support. These efforts ideally culminate in the conclusion of international treaties. The Federal Foreign Office is the lead agency in this area. The exact obligations and their scope are negotiated between the contracting parties and are binding on both sides. Germany’s participation in international organisations and treaties under international law is on the same level: it mainly consists of financing certain projects initiated by institutions such as the UN. By promoting the rule of law in this way, Germany is fulfilling its obligations under international treaties.

Measures at the micro level include what was formerly known as “technical cooperation”, which is now much more multifaceted than it was at the beginning of rule of law promotion. The majority of projects in the field of technical legal development cooperation, both financially and quantitatively, are carried out by the Gesellschaft für Internationale Zusammenarbeit (GIZ) on behalf of the German Federal Ministry for Economic Cooperation and Development (BMZ). GIZ’s main focus here is on creating and strengthening the technical conditions for the rule of law in partner countries. This includes providing resources for judicial institutions, further training of staff and advising on legislative projects and their implementation. In recent years, GIZ projects have increasingly moved beyond the technical field, which is not without controversy due to the differing tasks of BMZ, the Federal Foreign Office and the Federal Ministry of Justice (BMJ).

BMJ is actively involved on a quantitatively much smaller scale than BMZ, but makes a crucial contribution. In addition to bilateral cooperation with justice ministries of other states (including the rule of law dialogue pursued by the Federal Government with China and Vietnam), BMJ operates through the German Foundation for International Legal Cooperation (IRZ), which was established specifically for this purpose in 1992.

Secondly, there is the area of non-technical cooperation. This includes the political foundations, which carry out projects as independent actors to promote the rule of law in the countries in which they operate. The focus here is on the level of legal policy (e. g. dialogue between German and foreign political representatives) and the level of civil society. Unlike GIZ or IRZ, the political foundations are not implementing organisations. They organise their work independently and autonomously within the framework of the objectives agreed on with the funding agencies (BMZ and the Federal Foreign Office).

The non-technical area also includes academic cooperation and exchanges, for example through the German Academic Exchange Service (DAAD), as well as through several smaller institutions and research facilities that operate particularly on a regional or country-specific basis and that work in selective fields. Of the non-governmental organisations, one of the many is the German Federal Bar (BRAK), which cooperates with bar associations abroad. An example of a research institution organised under private law is the Institute for East European Law (IOR) in Regensburg with its cooperation partners in Eastern Europe.

Effectiveness of Rule of Law Work in the Western Balkans

As a result of increasing European integration in recent decades, promotion of the rule of law by EU states at national level has been significantly reduced. Since the turn of the millennium, most member state projects in Europe have gradually been integrated into or coordinated with EU development work. The largest donor in the Western Balkans region (Albania, Bosnia and Herzegovina, Kosovo, Montenegro, North Macedonia and Serbia) is the EU, which provides financial assistance mainly through the Instrument for Pre-Accession Assistance. In the period from 2014 to 2020, EU allocations to the Western Balkans in the rule of law area amounted to 700 million euros – some 16 per cent of the total bilateral EU aid. In 2021, for example, Germany allocated 7.86 million euros to the area of law and justice and 2.1 million euros to the area of human rights in the Western Balkans.

Rule of law promotion is a complex field in which success is sometimes difficult to measure. One of the reasons for this is that the impact of reforms or projects on a broader (societal) level does not become apparent until after a sometimes considerable delay. Furthermore, it is often difficult to establish causality between a particular measure and the success achieved. While the result at the output level (measurable activity or achievement) is immediately visible, for example if a legal database is set up, a publication is issued or a training programme is implemented, the concrete impact of such measures is difficult to determine. It may be possible to measure the outcome (the effect on the target group) of a measure, but its impact can often only be estimated.

The effectiveness of rule of law work over extended periods of time can be assessed, however. In January 2022, the European Court of Auditors published a special report on the effectiveness of EU support in the rule of law area in the Western Balkans. A total of 20 projects carried out in the period from 2014 to 2020 were analysed, focusing on the legal and judicial system, anti-corruption and human rights. In summary, the European Court of Auditors concluded that although the measures supported and implemented by the EU had resulted in reforms in the technical and operational areas, the measures had little overall impact in terms of fundamental improvements in the rule of law. In particular, it noted that too little had been done to develop limited administrative capacity or strengthen political will. According to the report, it is problematic that financing and implementation of projects were “not always” subject to the fulfilment of conditions (“conditionality”). Moreover, EU support for civil society was said to be not sufficiently geared to the latter’s needs and mainly limited to short-term projects. The findings of the European Court of Auditors are particularly relevant to this paper because some projects were implemented by German organisations. Indirectly, therefore, its assessment is also an assessment of Germany’s promotion of the rule of law in the Western Balkans.

Two Examples of Rule of Law Promotion in the Western Balkans

For this article, two practical examples from Serbia and Albania have been selected because they are typical of (technical) rule of law promotion: they involve advisory work on the introduction of new legal institutions and the formulation of the relevant legal bases, capacity development and support in implementing reforms. Thematically, the focus is on reforms in the area of courts and public prosecution offices as well as fighting corruption – two areas that are at the centre of many rule of law projects. These two examples were specifically chosen because they are not simply success stories (of which there are many) but also offer an opportunity for critical reflection from which lessons can be learned. Both projects were implemented by German development organisations.

In Serbia, the Instrument for Pre-accession Assistance first introduced in 2007 was used to prepare and implement judicial reforms. Various measures served to implement the action plan under Negotiation Chapter 23 to achieve the EU’s acquis communautaire and thus support the establishment of an independent, accountable and efficient judiciary. Under the Legal and Judicial Reform Programme with a funding volume of 7.1 million euros, two German development organisations were involved in these measures from January 2011 to May 2017.

Reforms of a public notary’s office play a significant role in increasing the efficiency of the courts in Serbia, as in most states in Southeast Europe. Through their advisory activities, notaries make an important contribution to avoiding future legal disputes and therefore to relieving the courts. In Serbia, a great need for such preventive legal administration and qualified advice was identified, especially in the area of property. For this reason, the project focused on advising the Serbian partners on establishing a public notary’s office. In addition to the two German development organisations, experts from the German Notaries’ Association and the German Federal Chamber of Notaries were also involved. Some preliminary work had already been carried out as part of a bilateral partnership from 2001 onwards.

In the course of the project, several practical difficulties arose that delayed implementation. For example, it was necessary to clarify the access of existing legal professions to the notary’s office and the development of admission requirements. Furthermore, awareness of the role and tasks of the notary’s office had to be created among professionals and the public at large. The discussion surrounding the setting of fees became a political issue. Moreover, since a number of legal transactions were to fall under the exclusive jurisdiction of notaries, the legal profession feared a loss of revenue and standing. There was considerable opposition to the law passed at the end of 2014. Having already gone on strike because of the changes in tax law that were disadvantageous to them, lawyers now additionally demanded the deletion of the relevant provisions in the Notaries Act. They organised a blockade of the administration of justice for several months, resulting in more than 200,000 court dates having to be postponed. As a result of protests, the exclusive competence of notaries for land transactions and certain contracts was removed from the law again in early 2015. The benefits intended to be generated by establishing the notary’s office were thus to some extent cancelled out.

There were various reasons for the lengthy duration of the project, some of which were beyond the control of the external actors. They include changing priorities of the Serbian governments between 2001 and 2014. While there was initially considerable willingness to implement reforms, motivation waned over the years and prime concerns changed, not least due to the Kosovo conflict (declaration of independence on 17 February 2008). From 2011 onwards and particularly following the parliamentary and presidential elections in 2012, the reform project was stepped up again.

Nonetheless, it is also evident that the expectations on the part of the advisors were not always realistic and that “in the context of legal transformation, some things can turn out very differently from what one would actually expect based on the objective circumstances”. Many of the stumbling blocks can be traced back to misjudgement or failure to take certain circumstances into account. It was known that the reform entailed disadvantages for the legal profession, for example. So even without in-depth knowledge of the country, it could have been anticipated that there would be resistance from lawyers. Finally, a thorough analysis of the institutional, economic and social framework conditions (in particular various manifestations of corruption) should have led to the realisation that defining the admission criteria for the notary’s office and setting the fees, for instance, would be a major challenge and would come up against opposition.

Nevertheless, it can be said that Serbia now has a functioning notarial service thanks to these reforms. This is an achievement despite the softening of the original regulations. Lessons that German rule of law promotion can learn for future projects from the experience gained in introducing this reform include the need for a fundamental needs assessment and in-depth analysis, not only with regard to the legal context but also in terms of the general situation within society.

From September 2014 to March 2018 and from April 2018 to the end of December 2021, the EU-funded projects EURALIUS IV and V were implemented in Albania to support and accompany the judicial reform there. Here, too, a German development organisation was commissioned to implement the projects. A core element was the drafting of the Law on the Re-evaluation of Judges and Prosecutors (“Vetting Act”). Part of the aims was to strengthen the independence of the judiciary, increase its efficiency, improve access to justice and fight corruption.

In its reports, the European Commission states that Albania has made progress in implementing judicial reform in the area of vetting: by September 2022, 554 first-instance review proceedings had been completed, with dismissals or resignations of judges and prosecutors in 64 per cent of the cases. The vetting process led not only to numerous dismissals in the lower courts, but also to the removal from office of judges in the Constitutional Court and the Supreme Court. Moreover, some judges resigned from office on their own initiative prior to the vetting process: soon after the vetting process began, only one of the nine judgeships at the Constitutional Court and four out of 17 positions at the Supreme Court remained filled. As a result, no decisions were taken by either court for more than two years. In 2019, the Supreme Court alone had a backlog of more than 30,000 cases – which continues to this day. The situation was dramatic in the lower courts, too, and remains so. At some courts, half of the positions are vacant because fewer judges and prosecutors can be trained and recruited than have left in the course of the vetting process.

One of the most serious consequences for those affected is the considerable delay in criminal proceedings: in Albania, pretrial detention (i.e. provisional detention pending judgement) may be extended to up to three years. Added to this is the imposition of pre-trial detention even for minor offences and detention conditions that are in some cases significantly below minimum European standards. The long duration of proceedings is also a major problem in civil and administrative justice. A trial before Albania’s most important court of appeal in Tirana takes three to four years, and before the Supreme Court at least seven years. As a result, citizens’ access to justice is significantly impaired. They cannot claim violation of their rights within a reasonable time frame, thereby resulting in an enormous loss of confidence: only 1 per cent of respondents “totally trust” the judiciary, 19 per cent “tend to trust”, while 74 per cent trust the judiciary to a lesser degree or not at all. With regard to the duration of proceedings, costs of proceedings, enforcement of decisions and transparency, between 0 and 1 per cent of the respondents say the judiciary is “excellent” or “very good”, while 10 to 15 per cent say it is “good”, depending on the category. Between 64 and 72 per cent rate performance in these areas as “poor” or “very poor”.

These side effects of the reform derive from several misjudgements in the planning of the project. On the one hand, the duration of the project was underestimated (instead of early 2022 as planned, the process is now not set to be completed until the end of 2024), as was the share of office-holders to be dismissed (originally about 30 per cent, now more than 64 per cent). Secondly, no effective arrangements were made to maintain a functioning judiciary. To date, there are not enough qualified personnel to fill many of the vacant positions at courts and in the public prosecutor’s office. The reformed High Councils, which appoint (new) judges and prosecutors, did not start their work until the beginning of 2019, almost two years after the start of the vetting process. No sufficient procedural basis was created to avoid or at least mitigate a procedural backlog. There was no workable strategy to increase the number of suitable lawyers and their retention. Finally, non-judicial staff such as secretaries and expert advisors were not sufficiently involved in the planning. Pre-service and in-service training did not take place, nor were assignments redistributed.

One thing the vetting process did achieve was the dismissal of corrupt officials from the judiciary. Whether the complete dysfunctionality of the judiciary – which has occurred at various times and still persists to some extent – is an appropriate price to pay, is an issue that at least requires extensive discussion. The result has been a temporary or even permanent denial of justice (“justice delayed is justice denied”) for thousands of people seeking justice since 2017. In any case, one of the lessons learned from this project is that, in addition to a needs and situation analysis (see Serbia case study), a thorough and critical risk and legal impact assessment should be undertaken and potential contingency plans (“plan B”) must be incorporated.

Conclusion

The rules-based order and the democratic rule of law as a system are being challenged today more than at any time since the Cold War. Even some EU member states are seeing setbacks when it comes to the rule of law, and developments in the immediate neighbourhood and among the EU accession candidates are stagnating at an inadequate level. This makes rule of law promotion all the more important now in particular – and it needs to be all the more effective.

For rule of law work to be successful and efficient, it must be strategically and conceptually well prepared. The approach of coordinating rule of law promotion in the EU accession countries at the EU level avoids duplication and enables synergies to be harnessed. The adoption of a strategy to this effect in Germany in 2019, which admittedly still needs to be filled with content, is also a step in the right direction.

There continue to be deficits at the planning and implementation level. In addition to ensuring the effectiveness of individual measures, the key challenges are their efficiency and sustainability, whereby these three categories are closely linked.

In development cooperation, the Logical-Framework method has become established, which – put very simply – contains four components, some of which have already been mentioned: input (resources used), output (product or service as a direct result of the activity), outcome (actual added value for the target group) and impact (sustainable benefit beyond the target group). Despite the frequent criticism of the method, it does enable sound planning and implementation of effective measures when applied correctly. The examples described above provide some indications for project planning. The most important of these can be subsumed under the heading of ex-ante and accompanying evaluation and adaptation.

Ex-ante evaluation: Even when formulating the objectives of a project, a critical and careful needs assessment and investigation of the social, economic and political framework conditions must be carried out (for example, will citizens be able to pay the higher notary fees, and will admission procedures to the notary’s office be sabotaged by nepotism?). This requires the involvement of experts in these fields, especially local experts. Legal expertise alone is not enough here. The formulation of objectives must be based on the findings thus obtained even if they do not correspond to the ideas or wishes of the project’s instigator (for example, it will not be possible to implement certain ideas put forward by the consultants against the resistance of the legal profession). The formulation of objectives must be followed by a feasibility analysis. The objective may need to be adapted to reality (for example, the notary’s office is not established as a copy of the German model but in an adapted version). The results of the feasibility analysis must be fed into the assessment of whether and to what extent the envisioned objective can be achieved at all given the resources available (for example, the duration and therefore the financing of a project lasting three years is far too short). Finally, a risk and legal impact assessment must be carried out and taken into account when the objectives are identified and during the subsequent planning (for example, if some of the judges are dismissed, there will be a backlog of cases; if not enough judges are trained, the vacant posts cannot be filled and the judiciary may become dysfunctional).

Accompanying evaluation: The formulation of objectives is followed by implementation planning and implementation itself. For each element of the project, the steps that were taken in the formulation of the objectives should ideally be repeated “in miniature”. Care must be taken to ensure that ownership by local partners and political support are in place (if that does not happen, then, for example, an institution may become non-functional or be abolished altogether as soon as foreign experts or funds are withdrawn). In case of resistance or even if the partners are passive, project implementation is fraught with risks, and changes in the framework conditions can also lead to problems during implementation. Implementation must therefore be evaluated on an ongoing basis. Drawing on the findings of the evaluation, the implementation process, the plan and, if necessary, the objectives must be adapted (for example, significantly more judges than planned have to be dismissed, resulting in a court’s inability to function and giving cause to adapt the plan or objective). However, this presupposes that the client (the funding agency) is also willing and able to accept necessary changes, to extend terms and to adapt objectives. Even the termination of a project must be possible as the last resort without negative consequences for the implementing organisation (“error culture”).

In summary, rule of law promotion is effective if it is based on sound planning, takes account of local conditions and is of a duration that makes it possible to achieve the objectives. Political foundations have a particular advantage here: they maintain a permanent local presence and have long-established contacts in civil society and politics. As a result, they have a very good knowledge of the political and social context in which rule of law cooperation takes place and can make a sound assessment of the requirements and likelihood of success. The Konrad-Adenauer-Stiftung, for example, focuses on promoting the rule of law and has established a global rule of law programme with sector programmes in Southeast Europe and in five other regions of the world.

– translated from German –

Dr Pavel Usvatov is Head of the Konrad-Adenauer-Stiftung’s Rule of Law Programme Southeast Europe based in Bucharest.

Julia Leitz is a legal trainee in the Konrad-Adenauer-Stiftung’s Rule of Law Programme Southeast Europe.

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