THE ANATOMY OF VETTING – BETWEEN LAW AND POLITICS
Sažetak
The paper examines the phenomenon of vetting in the judiciary in Albania, Bosnia and Herzegovina, and Serbia, as post-communist countries in the European Union accession process. Vetting is not a uniform concept, and it appears in several forms, such as review, reevaluation, and re-election (reappointment) of judges. There is no unique vetting model because it is impossible to apply it to different socio-political contexts. The author of this paper approaches vetting as an anti-corruption instrument useful in systems in which the rule of law is systematically and continuously violated, as well as the independence of judges and public prosecutors is violated. Vetting as a personnel reform programme in the judiciary should be agreed upon by a broad consensus (social, legal, and political actors) based on the constitutional and international norms. As a form and the cornerstone of administrative justice, vetting paradigm experienced a Copernican turn from transitional regimes to weak democracies. In the first case, it was a transitional justice mechanism, while in the second case, it was an instrument of recovery and strengthening the rule of law.
Reference
Ādamsons v. Latvia, No. 3669/03, Judgment of the Court (Third Section) of June 24 2008.
Becker, Peter. 2025. “Conditionality as an instrument of European governance–cases, characteristics and types.” Journal of Common Market Studies 63 (2): 402–419. DOI: 10.1111/jcms.13580
Green, Bruce, and Rebecca Roiphe. 2024. “Public Confidence, Judges and Politics on And Off the Bench.” Law and Contemporary Problems 87 (1): 183–212.
Horne, Cynthia. 2017. “Transitional justice: Vetting and lustration.” In Research Handbook on Transitional Justice, eds. Cheryl Lawther, Luke Moffett and Dov Jacobs, 424–442. Cheltenham: Edward Elgar Publishing.
International Commission of Jurists [ICJ]. 2016. Serbia’s judges and prosecutors: The long road to independent self-governance A Mission Report. Geneva: International Commission of Jurists.
Ioannidis, Michael, and Armin von Bogdandy. 2014. “Systemic deficiency in the rule of law: What it is, what has been done, what can be done.” Common Market Law Review 51(1): 59–96. DOI: 10.54648/cola2014003
Ivanovski v. “The former Yugoslav Republic of Macedonia,” No. 29908/11, Judgment of the Court (First Section) of 21 April, ECLI:CE:ECHR:2016:0121JUD002990811.
Mayer–Rieckh, Alexander. 2007. “Vetting to prevent future abuses: Reforming the police, courts, and prosecutor’s offices in Bosnia and Herzegovina.” In Justice as prevention: Vetting public employees in transitional societies, eds. Pablo De Greiff and Alexander Mayer–Rieckh, 180–220. New York: Social Science Research Council.
McAllum, Rebecca. 2016. “Judicial Complicity in Human Rights Violations: An Exploration of the Judicial Vetting Process from Transitional Justice and Comparative Perspective.” NZACL 22: 163–178.
Miljojkovic, Teodora. 2024. “Vetting as a Tool for Strengthening Judicial Integrity in the OSCE Region.” In Polarization, Shifting Borders and Liquid Governance, eds. Mihr Anja and Chiara Pierbon, 99–118. Cham: Springer.
Morgan, Peter. 2020. “Literature and lustration: Rebuilding social trust through literature.” Journal of European Studies 50 (1): 60–69. DOI: 10.1177/0047244119892864
Office of the United Nations High Commissioner for Human Rights [OHCHR]. 2006. Rule-of-law tools for post-conflict states Vetting: an operational framework. New York and Geneva: Office of the United Nations High Commissioner for Human Rights.
Perić Diligenski, Tijana. 2020. „Refleksije o pravnom nihilizmu.” Srpska politička misao 68 (2): 345–359. DOI: 10.22182/spm.6822020.15
Perić Diligenski, Tijana. 2023. „Postkomunistička lustraciona pravda.” Civitas 13 (1): 319–329.
Perić Diligenski, Tijana. 2024. “Establishing the rule of law as a national interest of the Republic of Serbia.” In National Interest(s) in World Politics, eds. Đukanović, Dragan, Saša Mišić and Nikola Jović, 387–400. Belgrade: Čigoja štampa.
Perić Diligenski, Tijana, and Slađana Mladenović. 2012. „Reforma pravosuđa u procesu pristupanja Srbije Evropskoj uniji.” Politička revija 34 (4): 49–72. DOI: 10.22182/pr.3442012.4
Resende, Teresa Maria, and Cierco Gomes. 2017. “What is hindering the reforms in the justice sector?” Communist and Post–Communist Studies 50 (4): 331–337. DOI: 10.1016/j. postcomstud.2027.004
Rožič, Peter. 2012. “Lustration and democracy: the politics of transitional justice in the post-communist world.” PhD dissertation. Washington: Georgetown University.
Rožič, Peter, and Yuliy Nisnevich. 2016. “Lustration Matters: a Radical Approach to the Problem of Corruption.” Studies in Comparative International Development 51(3): 257–285. DOI: 10.1007/s12116-015-9179-1
Sidabras and Džiautas v. Lithuania, No. 55480/00 and 59330/00, Judgment of the Court (Second Section) of 1 July 2003, ECLI:CE:ECHR:2003:0701DEC005548000.
Sotiropoulos, Dimitri. 2007. “Swift Gradualism and Variable Outcomes: Vetting in Post-Authoritarian Greece.” In Justice as prevention: Vetting public employees in transitional societies, eds. Pablo De Greiff and Alexander Mayer–Rieckh, 121–145. New York: Social Science Research Council.
Sovtransavto Holding v. Ukraine, No. 48553/99, Judgment of the Court of 25 July 2002.
Stein, Robert. 2019. “What Exactly Is the Rule of Law?” Houston Law Review 57 (1): 185–201.
Stojkova–Zafirovska, Lidija, Zharko Hadji –Zafirov, and Martin Sopronov. 2018. Vetting of judges in young democracies Comparative Analysis of Vetting in Albania, Bosnia and Herzegovina, Serbia and Macedonia. Skopje: Centre for Legal Research and Analysis.
Trajanovska, Vesna, and Entoni Miska. 2022. “Judicial Corruption and Vetting process – comparative analysis from Western Balkan countries.” Journal of Law and Politics 3 (2): 35–43.
United Nations Development Programme [UNDP]. 2006. Vetting public employees in post-conflict settings: Operational guidelines. New York: UNDP Bureau for Crisis Prevention and Recovery Justice and Security Sector Reform.
United Nations Development Programme [UNDP]. 2006. Vetting Public Employees in Post-conflict Settings Operational Guidelines Publication II. New York: UNDP Bureu for Crisis Prevention and Recovery.
Venice Commission of the Council of Europe [VC]. 2016. Opinion 0868 (2016) on Albania Amicus Curiae Brief for the Constitutional Court On the Law on the Transitional Re-evaluation of Judges and Prosecutors (the Vetting Law), Adopted by Venice Commission on its 109th Plenary Session in Venice, 9–10 December 2016.
Venice Commission of the Council of Europe [VC]. 2016. Opinion CDL-AD (2005) 004 on the Constitutional Situation in Bosnia and Herzegovina and the Powers of the High Representative, Adopted by Venice Commission on its 62nd Plenary Session in Venice, 11–12 March 2005.
Xhoxhaj v. Albania, No. 15227/19, Judgment of the Court (Third Section) of 9 February 2021, ECLI:CE:ECHR:2021:0209JUD001522719.
Zidar, Andraž. 1996. “Lustration: Removal of Opponents of Democracy from Public Positions” (English Summary). New Magazine 231–233, Last accessed on August 8, 2025. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1776359
