VC Experts Group Research
LIBERALISATION OF VISA REGIME IN THE REGION OF SOUTH EASTERN EUROPE
OBSTACLES AND POSSIBLE SOLUTIONS
LIBERALIZATION OF VISA REGIME IN THE REGION OF SOUTH EASTERN EUROPE
OBSTACLES AND POSSIBLE SOLUTIONS
CONTENTS 1. PREFACE 2. INTRODUCTION 3. NORMALISATION OF RELATIONS AND REGIONAL COOPERATION 4. SOME OF THE PROBLEMS OF REGIONAL CHARACTER (SOUTH EASTERN EUROPE) 5. THE SCHENGEN AGREEMENT 6. THE ROLE OF VISA REGIME 7. GENERAL AND SPECIFIC PROBLEMS CONCERNING CURRENT VISA REGIMES 8. HUMAN RIGHTS ISSUES 9. SOME OF THE EXPERIENCES OF FORMER AND CURRENT EU APPLICANT COUNTRIES 10. BOSNIA 11. CROATIA 12. MACEDONIA 13. SLOVENIA 14. HUNGARY 15. BULGARIA 16. ROMANIA 17. ALBANIA 18. SERBIA AND MONTENEGRO 19. EU STANDPOINTS - REQUIREMENTS AND POSSIBLE HELP TO THE REGION OF SEE 20. BORDER CONTROL AND CUSTOMS SYSTEM - THE FIGHT AGAINST ILLEGAL IMMIGRATION AND ORGANISED CRIME 21. SUGGESTIONS AND POSSIBLE SOLUTIONS
Accepting the idea of the Secretariat of the Citizen's Pact to participate in establishing and conceiving the research on visa regimes in the region of South Eastern Europe, I have accepted to work upon a very complex and insufficiently studied issue in this part of Europe. The governments of these countries have always payed special attention to this question, whether they wanted to develop and support processes of integration as one of the priorities of their foreign policies, or to close themselves even more, fostering the sense of xenophobia among their citizens. On the other hand, for us who come from the non-governmental sector, these processes have long been the fields of activities we could not participate in, nor to contribute to their solution. I have invited a few young people belonging to my generation - so I know them very well - and we have made a concept and started work which lasted from March to June this year. Our research was influenced by the fact that great changes in liberalisation of visa regimes had been happening in this part of Europe in that very moment. The Summit in Thessalonike that was forthcoming then presented a hope for the European future of the countries of South Eastern Europe - both the applicant countries and those that wanted to become applicants. The accelerated work of governments upon these issues and a great number of initiatives taken and agreements concluded between the countries in that period have imposed to us an additional task of adapting to a new situaton. Yet, some parts of the text could not have been updated in accordance with the new legal and polical situations that had been happening in that moment. Another important thing that has to be stressed in this preface is that the members of the research group, including myself, respected requests of a geographical interpretation writing this text, which influenced to the fact that some parts of the research are related to the perspectives of Serbia and Montenegro in future "Europe without frontiers". There are two reasons for such an approach. First, the legal acts, official documents and similar material are much more accessible for Serbia and Montenegro than for other countries in the region. The second reason lies in the fact that the differences in visa regimes of the coutries of South Eastern Europe are increasing - the nationals of some countries are not required visas any more, while for the others new visas have been introduced - and it is justified, in our opinion, to pay more attention to the country with one of the most unfavourable visa regimes. Finally, deciding upon a methodology and style of the text, we wanted - and people from the Citizens' Pact agreed with us - to make it simple and interesting and understandable to all citizens, both for those who want to travel (and face with the problem of visa requirements) and for our colleagues from the non-governmental sector, who fight persistently and patiently for the world without walls. The text can also be useful as an idea and reference to those who will deal with the subject when writing research papers.
Coordinator Igor Bandović
"Are you a terrorist?" Travelling abroad, especially in EU, without visas, i.e. without staying overnight in queues in front of embassies and filling forms with questions like those stated above, presents a problem that citizens of South Eastern Europe have been facing for more than a decade. Moreover, it is very likely that this problem will persist for an indefinite period. Why? After the EU enlargement, citizens of South Eastern Europe, especially nationals of the Balkan States, will find travelling abroad more difficult, including those few countries which they could visit freely so far. When Czech Republic, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovakia and Slovenia sign an agreement on the EU enlargement at the Summit in Athens - and it will enter into force on 1 May 2004 - they will have to accept the European Commission suggestion on visa policy for the citizens of the Western Balkans. Applicant countries will treat those citizens as the Member States do. They will have to insist upon visa requirements, in line with the Schengen criteria. Serbia and Montenegro, Bosnia and Herzegovina, Macedonia and Albania are currently in a so-called Anex I, (un)popular "Black List" of the Schengen Agreement.1 Reasons for such a treatment are mostly known. Putting the Balkan States on the Schengen "White List", namely moving from Anex I to Anex II, is primarilly a political question. There is no absolutely precise list of conditions that certain country has to meet for visa regime to be liberalised, although it is not difficult to suppose which are the most important ones - improvement of economic and social situation, signing readmission agreements2 with all the European countries and efficient border control. It is hard to estimate how long, after this, would applicant countries stay outside Schengen visa system, but there are some indicatons that it would take at least several years. If it is impossible to initiate visa abolition right now, what can we do to accelerate this process? Being aware how difficult is the problem, namely that forthcoming accession of Hungary to the EU will imply dangerous nearness of "Schengen wall" to the Balkan States, thretening to separate them from the rest of Europe, the Ministry of Foreign Affairs of Serbia and Montenegro has established a mixed working group which coordinates activities of governmental institutions and non-governmental sector whose responsibility would be to assist moving the country to the "White Schengen List", i.e. the list of the countries which are exempt from the EU visa regime. The decision about formation of the working group has been brought upon estimation that the abolition of the EU visa regime for Serbia and Montenegro nationals is among the priorities in European integration processes. However, could the state itself solve this problem? Efforts and initiatives towards liberalisation/abolition of visa regime in this area date from a significantly earlier period. A good example is the Igman Initiative, which has gathered some 100 non-governmental organisations from the three countries (Serbia and Montenegro, Bosnia and Herzegovina and Croatia). It has been a promoter of the idea of liberalisation of visa
Council Regulation (EC) No 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of visas crossing the external borders and those whose nationals are exempt from that requirement, Official Journal L 081, 21/03/2001 P. 0001 - 0007 (www.europa.eu.int) 2 A readmission agreement is an agreement between authorities of two countries which regulate acceptance of nationals of a country of origin who illegally reside on the territory of a host country, and who are being deported. A country of origin is obliged by the agreement to cooperation in procedure of their return.
regime among the countries in the region and wider. Being aware that bilateral relations cannot solve the problem in its entirety, and that broader initiative is needed, non-governmental organisations through coordinated approach put pressure on the authorities in the region, aiming at liberalisation of visa regime. A good foundation for their work presents development of various kind of dialogues, lobbying of different institutions in these countries and readiness for further cooperation.3 Further example are the activities of the Citizens' Pact for South Eastern Europe, lobbying for the idea of liberalisation/abolition of visa regime. In their appeals they note that "freedom of movement is a fundamental civilizational value and that without freedom there could not be united, peaceful and prosperous Europe". Within their campaign for visa abolition they initiate a petition signed by municipalities, working collectives and citizens. We have mentioned only a few of the initiatives, which proves that the third sector has long since perceived visa regime as a problem. What else could be done, by whom and how? This research has been conducted in order to support the above-mentioned and similar activities. While the research was carried out, the issue of liberalisation of visa regime was particularly topical, having in mind the forthcoming EU Summit in Thessalonike (June 2003), as well as the summer travelling season. We have been in position to monitor some of the activities among plenty of intensive and various measures that had been taken. We have tried to analyse them and to stress a number of aspects concerning visa regimes in the region. The research comprised the widest possible field, which includes judicial, political, economic and social issues, aiming at analysing their influence to (im)possibilities of liberalisation of visa regimes within the territory of South Eastern Europe, intending to recognise and present current problems and to consider instruments and activities necessary for reaching that goal. It is up to all the subjects in our society who strive to liberalisation of visa regime to recognise the aspect of the problem they find familiar, to consider possible solutions and to define their own role in the process. Only coordinated approach and the mobilisation of all the ideas and efforts can seriously contribute to acceleration of this process.
3. Normalisation of relations and regional cooperation
Facing the first group of countries from Eastern Europe neighbouring its members Poland, Hungary, (then) Czechoslovakia - the EU found the process of transition too slow and uneven and concluded that the resources they need surpass the existing ones. The solution had been found in cooperation of three (after separation of Czech and Slovakia four) countries. They understood mutual cooperation as a step backwards. However, by the time the mechanisms of complementarity had started to re-establish themselves, and, followed by the influx of foreign investments, which was particularly huge in Hungary, the result was the increase of traffic among former members of the Council for Mutual Economic Assistance, which had had longtime experience of mutual cooperation.4 Are there some similarities with the present situation and could such a "therapy" be applied to the Balkans today? Conflicts in the Balkan region influenced the EU in several ways - firstly, a flood of (illegal) immigrants from impoverished parts of Europe, secondly, great donations for regional help, and, as a final outcome, strenghtening of populist political parties (France, Austria, Holand). Among others, it was a reason for innovation included into the process of stabilisation and association for the countries of the so-called Western Balkans - Albania, Bosnia and Herzegovina, Croatia, Macedonia and Federal Republic of Yugoslavia in relation to the European agreements signed between countries of Central and Eastern Europe, namely the arrangement of so-called "conventions on regional cooperation". Every country that conclude the Agreement with the Union must also sign a convention on regional cooperation with all the other countries in the region that signed such an agreement. There is a precise content of these conventions stated in the Agreement: starting political dialogues, establishing regional zones of free trade, as well as direct judicial cooperation and cooperation in the field of interior affairs, especially aiming at strenghtening and independence of judicature, the fight against organised crime, corruption, money laundering and all the other kind of criminal trade.5 The message is clear: the EU does not want to "import" problems with their members, but to accept as its members countries which are capable of achieving successful cooperation with their neighbours and of finding solutions as for interior so for regional problems. Financial help is provided for, agreements are written, and it is up to countries themselves to follow the line of the EU. Is it enough to consider "connection" of countries in the region completed? Democratic changes in Serbia have been followed by accelerated renewal of political relations with the countries in question, with a promise that legal framework for economic cooperation with the countries will be set up aiming at improvement of the general economic situation. At present, this cooperation is still far from the promissed and expected, which harm both the economies in former Yugoslav republics and Serbian companies. In last 10 years, while there was a war on the territory of the former Yugoslavia, Serbian economy had relatively normal relations only with companies in Macedonia. Economic cooperation of Serbia and the
See Pravo Evropske unije - zbornik radova, (The EU Law - a collection of papers), Dobrosav M. Mitrović, Obrad Račić (eds.), Udruţenje za pravo EU i Centar za meĎunarodne studije, Belgrade, 1996. 5 See Međunarodni problemi, (International Problems) IMPP, 3/2002, Ţivorad Kovačević, "Balkan - Pogled u budućnost - Bez unutrašnje i regionalne stabilnosti nemoguće je u Evropu".
former Yugoslav republics, despite numerous bilateral visits of business people, is still on the level of indication of a more successful one. During several meetings in 2001 business people from Slovenia, Croatia and Bosnia and Herzegovina, together with those from Serbia, have expressed many objections directed towards their authorities for the lack of efforts for creation of legal frameworks for normal cooperation.6 It has to be clear for Serbia and Montenegro that regional cooperation, primarilly in the economic field, presents conditio sine qua non of economic and any other kind of development. As for cooperation with neighbours and countries in the region, it must be said that they are not only important commercial partners of Serbia and Montenegro in the region, but that they are also countries for foreign investments. Bosnia and Herzegovia are the fourth, Mecedonia the fifth, Hungary the sixth, Slovenia the seventh and Romania the twelfth commercial partner of Serbia and Montenegro. Slovenia, Greece and Hungary are among important investors, while Greece and Hungary are important donors, especially in the field of travelling infrastructure.7 If we add the already mentioned clause on regional cooperation incorporated into all the agreements on stabilisation and association signed by the Western Balkan countries, it goes without saying how important is to accelerate the process of coordination of current legal systems, not to mention the coordination of political priorities and compromises. A good example of regional cooperation is a project Memorandum of Understanding on Trade and Transport in SEE, with participation of Albania, Bosnia and Herzegovina, Macedonia and Romania, aiming at diminishing costs of trade and transport, as well as simultaneous decrease of smuggling and border corruption.8 The financial stimulus of the EU presents not only a unique opportunity for half-dead economies in the region, but it also promotes cooperation, inviting countries in the region to mutual connecting, strenghtening newly-established relations and cooperation in problem solving. Serbia and Montenegro has become a member of 7 regional initiatives in 2003, and itself has initiated numerous poltical and business meetings for keeping political and all the other forms of dialogue alive. The progress of changes in interior legal systems is still slow, but we have to ask ourselves about the direction of foreign policies of Serbia and Montenegro and other countries in the region. The Balkan States have promissed to improve their commercial connections and investments in a declaration aiming at breathing new life to the Stability Pact for South Eastern Europe. The Pact was established in Sarajevo at the end of the war in Kosovo in 1999, with the objective to stimulate political, economic and social cooperation in this problem area. It gathered donors from the USA and the European Union and impoverished Balkan countries. Representatives of Albania, Bosnia and Herzegovina, Bulgaria, Croatia, FRY (Serbia and Montenegro), Macedonia and Romania, under the aegis of the Stability Pact for South Eastern Europe signed a memorandum on understanding, referring to liberalisation of trade. At the meeting in Vienna in July 2002 ministers from eight countries have promissed to create better investment environment. Government representatives from Albania, Bosnia and Herzegovina, Bulgaria, Croatia, Macedonia, Moldova, Romania and FRY (Serbia and Montenegro) have promissed to coordinate their legal systems and increase their transparency. It was stressed that visa regimes would be simplified, as well as rules that regulate business, which is "the important
Source www.b92.net, September 2001. See Spoljnopolitički prioriteti SR Jugoslavije (Foreign Policy Priorities of the FRY), Jelica Minić, MeĎunarodna politika, 1107, IMPP, July-September 2002. 8 See The Stability Pact for SEE: Expectations and Results, Nebojša B. Vučinić, Between Autoritarianism and Democracy, Serbia, Montenegro, Croatia, Vol I, Institutional Framework, CEDET BG, CEDEM PG, CTCSR ZG, Belgrade 2003.
step for countries of South-Eastern Europe towards closer political and economic cooperation, as well as towards closer integration with European Union".9 In March 2003 in Brussels seven countries of South Eastern Europe have completed mutual negotiations on free trade. Most of bilateral agreements, which have to ensure creation of free trade zone in the entire region, will be enforced, as expected, in the middle of the year. Establishment of free trade zone in South Eastern Europe would create market of about 55 million of consumers and open important possibilities for trade and investments. Regional policy of free trade is an instrument for creation of open, market-oriented economies, which can also profit from competitive advantages that would become prominent in all the countries in South Eastern Europe, especially concerning lower work prices and better educated labour force. According to the Stability Pact for SEE, from the total number of 21 bilateral agreements on free trade that have to be signed, 10 are already enforced, and 3 are signed and wait for ratification. Among eight agreements that have to be signed, 4 relate to Serbia and Montenegro on one side, and Albania, Bulgaria, Romania and Croatia on the other.10 Does it mean that things function better among countries in the region than within themselves? Therefore, we may say that the existence and actions of various initiatives in South Eastern Europe are by all means positive. They help overcoming an attitude of self-sufficiency of states by promoting cooperation among countries in the region, diminish various kinds of obstacles, facilitate communication and create contact network. They facilitate preparation processes for cross-border projects and help initiating foreign investments. However, these initiatives and various forms of multilateral cooperation11 have not so far significantly helped the Balkan countries concerning pressing issues. The concrete results of these initiatives are limited, which could be explained by various factors - from insufficient political support to lack of financial resources, but also by some other problems (insufficient administrative experience of the Member States, absence of clear objectives and working plans, etc.). Cooperation among neighbours is still limited. In terms of this, it is still impossible to talk about any essential change in conditions in economic and social regional connections in relation to the previous period. Despite certain efforts, there is still no proof that the existing regional initiatives have sufficiently generated development of cooperation that is necessary for free development of economy and total exchange and movement of people, services and capital. 12 What is the perspective of further cooperation of the Balkan States, with the final goal in mind - the EU membership? The procedure of accession to the EU, although a very complex one, is not impossible to achieve. However, it is very difficult to say anything about duration of this long and complex
See "Balkan countries promissed to improve commercial relations", Financial Times, 20 July 2002. There are still no free trade agreements between Albania and Bosna and Herzegovina, Albania and Bulgaria, Bosnia and Herzegovina and Bulgaria and Bosnia and Herzegovina and Romania. See the map of the Stability Pact from 4 March 2003 - Anex 3. 11 Bilateral agreements have a significant role in regional cooperation as well. Worth mentioning are agreements relating to facilitating traffic in the region. According to the research conducted within SECI (www.secinet.org), it was noted that some measures, such as bilateral agreements, have already been undertaken between Turkey, Bulgaria and Romania. They refer to the exchange of lists of professional drivers whose visa applications are regularly addressed to relevant consulates in order to accelerate the issuing process. Serbia and Montenegro should insist upon such bilateral agreements, although the European Conference of Ministers of Transport (CEMT) at their meeting in Brussels in April 2003 confirmed that Serbia and Montenegro has right to free transport of goods all over Europe (which practically breaks the traffic Schengen). 12 See www.emins.org.yu (Regional initiatives and multilateral cooperation in South-Eastern Europe, Duško Lopandić, Ph.D)
way. It has been waited for a long time for the first countries of South and Eastern Europe to become members of the EU, which will (finally?) happen before the elections for the European Parliament in 2004. It is only certain that the number of these countries will be fewer than expected, for Bulgaria and Romania had been excluded in the meantime. Among SEE countries, the current candidates are Poland, Hungary, Czech republic and Slovenia.13 In a long term, giving up the illusion that the accession to the EU could happen soon, more and more important will become the question about more coherent and stronger institutional cooperation among countries of South Eastern Europe through the Stability Pact or some other form of regional initiative. This could help SEE countries bridging the gap between the need for transnational regulation of certain issues and still uncertain enlargement of the EU in this region. Fields and sectors that could become vital in further cooperation and integration of SEE countries are, among others, free trade, transport, development of infrastructures, environment protection, cross-border and sub-regional cooperation, tourism, development of services (especially financial ones), as well as cooperation on issues of interior affairs and security. In the Balkan region first steps towards normalisation of relations and regional cooperation have already been undertaken. The progress is perceptible, but many things still have to be done. For complete normalisation of relations it is necessary to eliminate numerous obstacles in cooperation. Speaking of Serbia and Montenegro, there is a notable progress in relations with Macedonia, Slovenia and Bosnia and Herzegovina, which are particularly willing to cooperate. Relations between Serbia and Montenegro and Croatia have allso been improving, with notable efforts on both sides, although the progress in the past was a slow one. 14 Economic development is still on the level of examination, information gathering, contacts and a lesser number of investment undertakings and joint projects. There is still no significant regional economic cooperation. Cultural, sport and other kinds of copperation are also very modest. The only form of close and regular cooperation is those of non-governmental organisations, which had been doing this during all the conflicts in the region. However, it is not very prudent to expect intensive economic, as well as any other form of cooperation, if, among others, there is a problem of traffic relations between countries in the region (absence of flights, bad condition of roads, etc.), and, particularly, rigid visa regimes. The third sector, aware that it presents the fundamental precondition for initiating cooperation in the region, not just on the highest, but on all the levels, takes great efforts to make free movement of people and goods possible in South-Eastern European countries. A good example is the initiative for simplification of visa regime, which is particularly rigid between Serbia and Montenego on one side and Croatia and Slovenia on the other. The representatives of the Igman Initiative, joint project of over a hundred NGOs from Bosnia and Herzegovina, Croatia and Serbia and Montenego, have been lobbying with the project of so-called mini-Schengen, which suggests gradual abolition of visas. The goal of the project is to put pressure on governments of some countries in the region to start the process of visa abolition, but also to put pressure on the EU to enable Bosnia and Herzegovina, Macedonia and Serbia and Montenegro the same treatment as Croatia, Romania and Bulgaria already enjoy- namely, the movement to the Anex II.15
See www.ijf.hr See www.mvp.hr 15 See Jugoistočna Evropa - pogled u budućnost: Izvesni mir i izvesna stabilnost (South Eastern Europe - Look in to the Future:Safe Peace and Stability) , Ţivorad Kovačević, www.helsinki.org.yu
4. Some of the relevant problems of regional character (South Eastern Europe)
After the democratic changes in Serbia in October 2000, visa regime with the rest of the world has not been liberalised as expected. The main reason for this was a complete political, legal and economic chaos in the country. Although they supported deposition of non-democratic regime, the other European countries did not assent to unconditioned "opening" of Serbia and Montenegro (then FRY) to Europe and to the world. At the Conference on transnational organised crime held in London in November 2002 a clear message was sent to every country with widely expanded organised crime that they could not join the EU. Serbia and Montenegro could recognise itself in this warning in that moment. Exceptionaly high rate of poverty16, disturbing crime rate, consequences of wars that imply difficulties in arresting and deportation of those accused for war crimes (therefore, problems in cooperation with the ICTY), and, additionally, permanent disagreements on the political scene - all this not just hinder quick integration of the country into the EU, but also make political decisions more difficult to make. It is sometimes impossible to reach consensus on the simplest issues in governance. It is necessary for Serbia and Montenegro to fulfill a number of conditions in order to be finally accepted to the oldest Europen organization - the Council of Europe, on 29 March 2003. Furthermore, if we want to continue the process of European integrations, it is necessary to go several steps beyond. It goes without saying that a country going through the process of transition finds itself in turbulent conditions, but it is also true that consequences of such turbulence can affect the whole region, even potentially shake the system of international organization. The EU policy concerning this problem is crystal clear - a country must proove its "maturity" to become a member. For, speaking of OSCE or the Council of Europe, it is a matter of international cooperation, while in case of the EU it is a process of integration in question.17 It is beyond doubt that the SEE countries must fulfill a number of conditions to stand in front of the EU door. However, the current trend of making the EU borders with southern countries less passable threaten to build hard Schengen walls around still problematic part of the SEE region. The question is: what might be the results of this "walling in" in the region? The problem of security regulation is becoming more and more one of the major problems in the Balkans. It cannot be solved only through legal, economic or social measures within the interior system - it requires specific methods and solutions on the regional level, as well as the active participation of the EU.18 It is uncertain whether the Schengen wall would guarantee security of the EU from the influence of cross-border organised crime - it is even possible that the restricive measures would inspire various kind of illegal activities. The fight against organised crime is among priorities for all Balkan countries, and this problem is still topical since the adoption of the UN Convention on Transnational Organized Crime in Palermo 2000. The EU support in this fight consists in significant financial help for the Balkans. Alongside with the fight against terrorism, it was highlighted that a particularly significant problem in the region is human smuggling (prolem of illegal immigrants), inspired just by the
See www.srbijabezsiromastva.org.yu See Obrad Račić, Odlučivanje u Evropskoj uniji: Kako se različiti interesi usklađuju (Decision Making in the European Union: How to Coordinate Different Interests), Centar za antiratnu akciju, Belgrade 2001. 18 See www.emins.org.yu ("Regionalne inicijative i multilateralna saradnja u Jugoistočnoj Evropi" (Regional Initiatives and Multilateral Cooperation in South Eastern Europe), dr Duško Lopandić).
rigid regional visa regime. Representatives of European institutions participating at the meeting "Liberalization of visa regime and human trafficking" in Belgrade, in March 2003, concluded that there is a direct connection between these two problems, while at the conference of eight countries of the Process of cooperation of South-Eastern Europe (PCSEE), held also in March 2003 in Belgrade, they concluded that in order to solve the problem of human trffacking it is necessasry, among other things, to strenghten border cooperation, but also to liberalise visa regime, for visas cannot stop the criminal. Namely, rigid visa regimes do not stop crime, nor human trafficking, but they do stop free movement of people, which is the precondition for creation of free trade zone. It was noted that the problem was not in the border policy, but in good organisation and connections that criminals have. They emphasised the need for closer cooperation in the fight against human trafficking and estimated that liberalisation of visa regime would contribute to closer connection of the region to Europe. Regional cooperation is of the essential importance for harmonisation of visa regimes of these countries. The opinion of the special coordinator of the Stability Pact for South-Eastern Europe is that common visa regime in this part of Europe could above all contribute economy. The Balkan States, which nominally strive to European integration, cannot affirm themselves by introducing visas for closest neighbours. Only when one of them shows its willingness to harmonise its visa regime whith those of its neighbours, it can get a chance for a dialogue with the European Union.19 The opininon of the EU representatives is also that the liberalisation of visa regimes among regional countries presents primarily their own problem, but that the EU will continue with its support to processes of regional cooperation and thus support the liberalisation of visa regimes within the region as well. At the sixth summit of presidents and prime ministers of the Process of Cooperation in South Eastern Europe, held in Belgrade in April 2003, the priority was repeatedly given to the regional cooperation, in view of security problems in the region. In order to improve the existing and to develop new fields of cooperation, it was concluded that it is necessary to continue with the fight against terrorism and organised crime on the regional level, with development of systems of bilateral agreements on free trade (aiming at creating the free trade zone in South Eastern Europe), as well as with modernisation of border control and liberalisation and harmonisation of visa regimes, respecting obligations of participating countries towards the European Union. It seems that the significance of this meeting lies, among other things, in the fact that the participating countries agreed that it is not possible to liberalise visa policy by mere pressure on the candidate countries (which contradicts the obligation taken by concluding the Stabilisation and association agreement), but also by other means (modernisation of border control, meeting the conditions required by the EU for removing from the Schengen "Black list", etc.) There is an agreement on the regional level that the source of instability lies in influence of war consequences.20 The wars are over, but the other problems are still present: massive smuggling of weapons, cigarettes, energents, drugs, human trafficking and other forms of organised cross-border crime. It seems that criminals achieve more successful and efficient
Source www.b92.net, March 2003. Legal proceedings before the Internation Court of Justic that Bosnia and Herzegovina and Croatia institute agains Serbia and Montenegro have a special role in (non)eliminating war consequences. Whatever the decision the International Court of Justice make, there is a possibility of significant chilling of relations and of serious crisis in the region. For that reason the officials from Serbia and Montenegro insist upon individual responsibilitity, upon cooperation with the International Court of Justice and upon bringing to justice for all the accused . The International Court of Justice opt for the state responsibility, which might generate huge problems in the region (see the interview with the Minister for Foreign Affairs of Serbia and Montenegro, www.gradjanskisavez.org.yu).
cooperation among themselves than government of the countries in the region do. Moreover, it became clear that the cooperation is the worst in security matters. All turn to international institutions and integrations, but not to their own neighbours - there is no military and police coordination in the region. It has been understood that there are similarities between problems in the region, but that there was not enough coordination and cooperation. It seems that every country still tend to meet the EU requirements on its own. There is, obviously, a widespread conviction that it is better to enter the European integration processes on one's own accord, even to compete with other countries in the region. However, as it has been already stressed, the regional cooperation and common approach in solving regional problems is a precondition for European integration, which is the attitude of the EU itself (corresponding clause in the Stabilisation and Association agreements). Movement of people, goods, ideas and capital is also a vital issue. Needless to say, every attempt to reduce and stop this free flow results in attempt to try alternate solutions As it has been proved in practice, these solutions are very often illegal ones. For all these reasons, the interess of Serbia and Montenegro, as well as of all the other countries in the region, is to enter the so-called White List of the Schengen countries as soon as possible.
5. The Schengen Agreement History of the Agreement
Schengen is a little town in Luxembourg, placed on the border with Germany and France, where in 1985 it was signed an agreement aimed at facilitating movement of people across the borders of five member countries of the European Communities of that time. The original signatory countries were the Benelux countries (Belgium, the Netherlands and Luxemburg), France and the Federal Repubic of Germany. Although it is clear today that the Schengen Agreement is one of the instruments that influenced most the creation of today's form of the European Union, its history is in large measure independent, in relation to agreements which determined creation of economic communities in Europe. The foundations of the Agreement had been laying gradually, and the whole process began as early as after the Second World War. In 1946 Belgium, the Netherlands and Luxembourg set up the arrangement (so-called "unification") expressing their willingness to act as the united entity in future. As a result, they established customs union of the Benelux countries in 1948. In the 1960s a number of agreements was reached between these countries in the field of criminal law: 1962 Treaty on Extradition and Mutual Assistance in Criminal Matters 1968 Treaty on the Execution of Judicial Decisions in Criminal Matters 1969 Benelux Convention on Administrative and Criminal Co-operation in matters related to the aims of the Benelux Economic Union. These documents served as a model for future European cooperation and integration. In the same period, Nordic countries (Denmark, Finland, Norway, Sweden and Iceland) signed an agreement on passport control (1957), which significantly facilitated border crossing between these countries. France and the Federal Republic of Germany signed the Saarbrücken Agreement in 1984, which drew them near to adoption of the free movement across common borders. In June 1985 the above-mentioned signatory countries signed the agreement on the gradual abolition of checks at their common borders, known as the Schengen Agreement. Five years later, on 19 June 1990, they signed the Convention applying the Schengen agreement. Further, in a document entitled "Final Act with Schengen Implementation Agreement", the governments of the countries that signed the Agreement and the Convention adopted six declarations (on Article 139; on Article 4; on Article 71, point 2; on Article121; on national asylum policies; on Article 132). Two additional texts were also signed together with the Convention: 1. Protocol, containing common declaration on German unification and three unilateral declarations (two signed by the Federal Republic of Germany, one by Belgium); 2. Common declaration of ministers and state secretaries, containing the list of priority issues to be considered in future. Since it was possible for all the member countries of the European unions of that time to become signers of the Conventions, the Agreement was expanded on new ten European countries that expressed their will to join. Italy joined on 27 November 1990, Spain and Portugal on 25 June 1991 and Greece on 6 November 1992.
Denmark also entered the negotiations to join the Convention, but the former agreement with the other Nordic countries was an obstacle for membership. For that reason Danish government first submitted a request for the observer status, and then, yet, on 25 March 2001 started to implement the Agreement together with Finland, Sweden, Norway and Iceland (the last two countries are not the EU members). Austria, which had had the observer status since 27 July 1995, adopted the Agreement in 1995. Switzerland applied for membership on 25 May 1993, but the negotitiations have not been yet finalised. There are, therefore, fifteen member states of the Schengen Agreement: Austria, Belgium, Denmark, Finland, France, Germany, Iceland, Italy, Greece, Luxembourg, the Netherlands, Norway, Portugal, Spain and Sweden. The Convention came into force on 26 March 1995, excluding France which, by the final clause, postponed implementation of certain parts of the Convention till 26 March 1996. It could be concluded that the Convention and the Agreement in the first period had not been directly and competely connected to the system and law of the European Union. It becomes obvious as soon as we look at the list of the member countries - not all the countries of the European Union signed the Agreement (the United Kingdom and Ireland are excluded), nor all the signatory countries are the members of the EU (Iceland and Norway are joint members of the Agreement, Switzerland negotiated on membership). On the other hand, certain aspects of the Schengen model were in harmony with the Union objectives to create a unique territory where people could move without any restrictions. In view of this, the Agreement is compatible with the Maastricht Treaty and it serves as a suitable instrument for achievement of interests proclamed in Title VI of this Treaty ("Provisions on cooperation in the field of justice and interior affairs"). Further, it the Schengen Agreement itself they plan a number of direct and indirect connection with the European Union system. First, according to the Article 140 of the Convention of implementation of the Schengen Agreement, only states which are members of the EU could become members of the Schengen system. The Article 134 of the Convention explicitely refers to connection with the EU system: provisions of the Agreement are implemented only if in accordance with the EU law. In the Article 142 of the Convention they say that if the wider European convention about the area without internal borders is signed, The Schengen Agreement will be changed, included into it or replaced by some new arrangement. Finally, some parts of the Agreement have been incorporated into the EU law from the very start of its implementation (e.g. provisions related to money laundering or weapon and ammunition trade). We can conclude, therefore, that the Schengen Agreement presents a typical example of development of "Europe in various speeds": some EU members are ready to go further in the integration process and, in this view, they make specific mutual arrangements, even beyond the institutional system of the European Union itself. However, it was decided in 1997 that the Schengen Agreement should cease yo exist in its independent form and to become a part of the EU law. This decision was made by the Treaty of Amsterdam, namely by the one of the Protocols with this Treaty signed on 10 November1997. As a result of this decision, the Schengen system was incorporated in the EU law on 1 May 1999 (when the Treaty of Amsterdam came into force). Norway and Iceland, countries which are not members of the EU, signed with the European Union a special agreement (Schengen Co-operation Agreement, signed in 1996), according to which their membership in the Schengen system stayed in force. As for Great Britain and Ireland, they have chosen to participate in particular fields of Schengen cooperation
(therefore, they are not completely outside the Schengen system), but they kept interior border control.
The Contents of the Schengen Agreement
The purpose of the Schengen Agreement is visible from its official title itself ("The Agreement between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the Gradual Abolition of Checks at their Common Borders"). The Agreement consists of two parts. The first part, entitled "Short-term measures", establishes conditions necessary to perform formalities among signatory countries on common borders, from the moment the Agrement came into force to the complete lift of control. The signed conditions relate to the following areas: Control on border crossings, carried out by police and customs authorities. Most of these cases are common visual monitoring of personal vehicles, without stopping them. However, these organs are entitled to perform more detailed control by the method of random sampling; Facilitating visual monitoring of vehicles of nationals of the member countries of former European unions by labelling them; Reducing delaying time on common borders to the minimum necessary for control of professional road transport of people. In accordance with this, it was planned to give up systematic control of military travel documents and permissions for professional road transport of people; Introducing common controls in state control offices; Usage of privileges aiming at facilitating movement of nationals of member coutries of European unions of that time who resided in municipals on common borders; Coordination of visa policies in order to avoid negative consequences of control reducing in the fields of immigration and security. In this view, it was planned for signatory countries to adopt provisions necessary for regulation of visa issuing procedures and thier receival on their own territories, having in mind security of the whole territory of other countries against illegal immigration and activities that could endanger security; Strengthening cooperation between customs and police organs, especially in performing joint actions in the fight against crime (especially illegal trade of narcotics and weapons, irregular entries and residence of people and customs misappropriations and frauds); Systematic control on common borders in the field of cross-border road transport of goods. Coordination of licence policies for professional road transport in cross-border traffic; Coordination of workdays and working hours of custom-houses on common borders and in fluvial traffic. The second part of the Agreement is entitled "Long-term measures". The signatory countries agreed that they would improve cooperation in the following fields: Abolition of controls on common borders and their transmission to external borders. In this view, it was intended to coordinate legal provisions with regulations for control transmission, as well as to take additional security measures and measures against illegal immigration;
Police cooperation in the field of crime prevention and in the field of investigation; coordination in international legal assistance and in extradition issues; finding instruments for the common fight against criminal; Coordination of legislation in the field of fight agains trade in narcotics, weapons and explosives, as well as on issues of registering travellers in hotels; Development of coperation in facilitating customs clearance for goods that cross common borders through systematic and automatic information exchange; Supporting initiatives of the European unions of that time concerning coordination of indirect taxes.
The sides also agreed to consultation between member countries berfore making any bilateral or multilateral arrangement similar to this Agreement with non-member countries. The Contents of the Convention applying the Schengen Agreement
The Convention consists of four parts. The first part, entitled "Definitions", contains explanation of key terms in the Convention. The second part, entitled "Abolition of checks at internal borders and movement of persons", consists of seven chapters: 1. Crossing internal frontiers; 2. Crossing external frontiers; 3. Visas (for short visits and for long visits); 4. Conditions governing the movements of aliens; 5. Residence permits and reporting as a person not to be permitted entry; 6. Additional measures; 7. Responsibility for the processing of applications for asylum. The third part of the Convention, entitled "Police and security", consists of seven chapters: 1. Police co-operation 2. Mutual assistance in criminal matters; 3. Application of the Non bis in idem principle; 4. Extradition; 5. Transfer of the execution of criminal judgements; 6. Narcotic drugs; 7. Firearms and ammunition. The last part of the Convention, entitled "The Schengen Information System", consists of eight parts: 1. Setting up of the Schengen Information System; 2. Operation and utilization of the Schengen Information System; 3. Protection of personal data and security of data under the Schengen Information System; 4. Apportionment of the costs of the Schengen Information System;
5. Transport and movement of goods; 6. Protection of personal data; 7. Executive Committee; 8. Final provisions.
Definitions In the introductory part of the Convention there are definitions of thirteen key terms of the Document. They are the following: internal borders, external borders, internal flight, Third State, alien, alien reported as a person not to be permitted entry, border crossing point, border control, carrier, residence permit, application for asylum, applicant for asylum and processing of an application for asylum. The most important changes that happened by adoption of the Schengen System can be seen through the definitions of the following terms: Internal borders shall mean the common land borders of the Contracting Parties, their airports for internal flights and their and their sea ports for regular trans-shipment connections exclusively from or to other ports within the territories of the Contracting Parties not calling at any ports outside those territories; External borders shall mean the Contracting Parties' land and sea borders and their airports and sea ports, provided they are not internal borders; Alien shall mean any person other than a national of a Member State of the European Communities; Alien reported shall mean any alien listed reported as a person not to be permitted entry in the Schengen Information System.
Abolition of control at internal borders and free movement of people The main objective of introduction of the Schengen System was creation of the common area where free movement of people is possible. For that reason, crossing of internal borders is not limited to border crossings, but it is possible everywhere. Exceptionally, in cases when it is necessary for reasons of national order or requirements of public order, member countries are entitled to introduce temporary control on their borders, after the agreement with the other members. In cases when it is necessary to act urgently, a contracting party is entitled to take certain measures, but it must inform other contracting parties about that as soon as possible. The policy of free movement of people is applied to all the EU member states, therefore to the Republic of Ireland and Great Britain as well. Unlike internal borders, external borders can be crossed only at border crossings. Border authorities carry out standard control, according to the measures of internal law of the Schengen member country in question, respecting interests of all the other members. This control is performed in accordance with uniform principles: Control includes not only examination of documents necessary for border crossing, but meeting other preconditions for entry and exit as well (legal examinations inportant for defence from threat for national security and public order). The control includes also control of vehicles and personal belongings of people crossing the borde;
Every person is subjected to control which enables authorities to find out their identity from travel documents; Nationals of the third countries are subjected to detailed entry control; Exit controls are carried out in interest of all the contracting parties upon immigrant rights and for pursuit and defence of national security and public order. Detailed exit controls are regularly carried out upon nationals of third countries. If it is impossible to perform such controls due to special circumstances, entry controls are given preference over exit controls.
For stay up to three months, aliens must, in the moment of entry, meet the following obligatory cummulative conditions: Possession of valid documents for border crossing; Possession of a valid visa, if reqiured for nationals of that country; Possession of resources that enable normal life during the stay, or if there are possibilities for that particular person to gain these resources in legal way; A person must not be registered as a person not to be permitted entry, or as a person who is a threat for public order, national security or international relations. If an alien does not meet some of the conditions mentioned above, a contracting party can approve entry from humanitarian reasons, from national reasons, or upon international legal obligations. However, such an approval holds only for the country in question, which is still obliged to inform all the other contracting parties about the case. In spite of lift of controls at international borders, nationals of the third countries are obliged to report to authorities of the country of destination, according to conditions set up by every member (refers to the term of report). The obligation still holds if they stay on the territory of a certain country where they came from another Member State. The members of the Schengen Agreement are obliged to adopt common visa policy, which includes help and coordination of national policies in the field. They have established a uniform visa for the territory of all the countries of the Schengen group. Transit visas and travelling visas are issued upon common criteria and enable free movement on the territory of all the member countries, as well as stay up to three months on the Schengen territory. Respecting commonly established visa policy, Member States made a list of over a hundred countries whose nationals must have visas. This list - surprisingly - was not the same as those established by the Europen Union, by the provision from 25 September 1995. Issuing visas for long stay is still in jurisdiction of particular countries. The Convention does not anticipate coordination and common policy in that field. However, the conditions for entry of aliens on the territory of signatory countries are applied in such cases as well. Also, the Article 18 of the Convention prescribes that possession of visas for a long stay enables transit over the territory of all the other members of the Schengen group, in order to arrive to the conutry that issued such visas. After the expiry of visas, aliens must leave the territory of a country in question. If they are unwilling to do this, they will be expelled upon internal provisions of the member state (or upon concluded international agreement). The Convention gave particular consideration to the problem of sanctioning carriers, having in mind the topical issue of organised illegal transport of refugees. The Convention obliged all the members to incorporate in their national legislation conventions which regulate
responsibility of carriers, taking into accout obligations that arise out of the Geneva Convention of 28 July 1951 relating to the Status of Refugees. The carrier is obliged to take all necessary measures to ensure that an alien is in possession of the valid documents required for entry into the Schengen territory. If an alien is refused entry into the territory of a Member State, the carrier which brought him to the external border shall be obliged to assume responsibility for him again without delay. Solution of asylum issues provoked many critical remarks by humanitarian organisations, because of the negative consequences that might be caused by adoption of the policy of narrowing possibilities of influx of aliens to the EU countries. The solutions in this field are almost identical to those of the Dublin Convention establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (the so-called First Convention on Asylum, signed on the EU level in 1990). In principle, when deciding upon asylum applications, the only one country is authorised. This means that, even if the application is addressed to several countries, only one is authorised to decide upon it (it is usually the first country which the applicant enters, or the country that issued a visa). However, it is not an obstacle for another country, on the basis of interior legislation, to take over the procedure of decision, even if it would, according to the Convention, belong to jurisdiction of another member state. This follows from the fact that the decision about the authorisation is based, inter alia, upon the principle of solidarity among member states and responsibilities in relation to the treatment of applications (they are obliged to consider thoroughly all the applications, regardless their number). Finally, there are some special criteria for deciding upon authorisation of a particular country: Family reasons (for the reason of family reunification, a country which gave asylum to a person must decide upon asylum application for a member of his family); Humanitarian reasons (a country authorised to consider asylum applications may ask another country to take over the decision procedure from primarily cultural and family reasons, if the applicant agrees).
Police and Security Cooperation among police organs of the member countries is primarilly in function of cross-border pursuit and control on external borders. Police cooperation established by the Agreement includes information exchange, cross-border supervision and cross-border pursuit, as well as control of objects for housing and exchange of liaison officers. Further, the Convention coordinates rules and methods in control and fight against illegal trade of drugs, fire arms and ammunition. Police organs of the member countries are obliged to mutual help in order to prevent, fight against and investigate criminal actions. A step forward in police cooperation of the Schengen member countries, which is dependent on lift of interior border controls, is a possibility of supervision and pursuit across national borders (before the lift of controls they regularly ended on national borders). Police forces of today, when in an investigation procedure supervising a suspect for extraditable offence, may continue their supervision on the territory of another member state, if the cross-border supervision is approved upon previously submitted request for legal assistance. In urgent cases, however, when previous allowance of another
country is impossible to get, police officers are entitled to carry on their supervision crossing the border under the following conditions: To immediately inform authorities of another member country of crossing the border (therefore, during the operation); To submit without delay a request for legal assistance, explaining the reasons for crossing the border without previous permit. Police organs are obliged to stop a pursuit on the request of a member country on whose territory the pursuit is undertaken, or if they are not given a permission in five hours after crossing the border. Decisions on mutual legal assistance in criminal matters contained in the Convention present annexes of the European convention from 20 April 1959 on mutual legal assistance in criminal matters and the Benelux Agreement from 27 June 1962, in the part related to extradition and mutual legal assistance in criminal matters, changed in the Protocol from 11 May 1974. Mutual legal assistance has been expanded to six areas, not included by previous conventions: Violation of rules in jurisdiction of governing organs; Indemnification in cases of unjustified measures of pursuit or accusation; Amnesty procedures; Civil cases related to criminal matters, under the condition that the final verdict has not yet been returned; Deliverance of legal decisions Measures related to suspension of verdicts. In order to accept a request for legal process or confiscation, there must be provisions on punishableness of incriminated acts in both member countries, while the execution of the subject of a request is in jurisdiction only of internal legislation of a country that received the request. Establishing areas of mutual help of judicial authorities of signatory countries, the Schengen member countries agreed upon coordination, so a request for coordination can be sent directly from one judicial authority to another (coordination need not go through ministries of justice). Every contracting party, according to the Article 52, can send by post documents to people who are on the territory of another country. Contracting parties hand over to the Executive Committee a list of documents which can be sand this way. The principle ne bis idem is of the essential importance for development of mutual legal assistance among members of the Schengen group, for it obliges to mutual respect of legal decisions. Provisions on extradition, also, present the annexes of previously adopted documents (the European Convention on Extradition from 1957 and the Benelux Agreement from 1962). In order to facilitate implementation of the Convention, there are three rules for all the Schengen members: Registration in the Schengen Information System. Police is obliged to inform a court that a person is a crime suspect. Only after this the court can issue warrant of arrest. Requests for extradition are submitted to authorised ministry of a member state (in France it is the Ministry of Foreign Affairs, in other countries ministries of justice). It is possible to accelerate extradition procedure (extradition without formal procedure) if a wanted person agrees to it.
As for transfer of judicial decisions, it is possible in cases when a person returned to his country (the Schengen member) in order to avoid to serve his time in another Member State where he was sentenced. In such a case, a country that gave judgement against the person might request from the other country (to which the sentenced person went) to take over the execution of punishment or security measures. Unlike the solution adopted by the Council of Europe, here is not necessary to ask a sentenced person for agreement. The Convention applying the Schengen Agreement manages the trade of legal drugs and organises the fight against illegal ones. In accordance with such an orientation, the Member States established a standing working group whose responsibility is to solve common problems in the fight against crime. Different legal solutions of the Schengen countries concerning conditions of purchase, possession and sale of fire arms and ammunition generated the need for coordination, i.e. harmonisation and establishment of a minimal common legal framework for the all Schengen members, with possibilities of keeping the right for every member to prescribe more rigorous measures in their internal provision on arms.
The Schengen Information System The Schengen Information System consists of the Central service for technical assistance (placed in Strasbourg) and the National Data Bank (in every memeber country). The Schengen Information System consists of the united data already input in the information systems of the member countries, which indicate to presence of potentially dangerous people or actions. The goal of the information system is explicitely stated in the Article 93 of the Convention applying the Schengen Agreement: "The purpose of the Schengen Information System shall be in accordance with this Conventon to maintain public order and security, including State security, and to apply the provisions of this Convention relating to the movement of persons, in the territories of the Contracting Parties, using iformation transmitted by the system". As the Information System presents a cornerstone of the Schengen system, it was of the utmost importance not to endanger its functioning when including it into the framework principles of the European Union. The Schengen Information System has been operating since 1995. The first seven countries that took part in information exchange were Germany, Belgium, the Netherlands, Spain, France, Luxembourg and Portugal. In 1997 Austria, Greece and Italy joined. The last five countries (Denmark, Finland, Iceland, Norway and Sweden) joined the system in 2000. The system connects countries that signed the Convention and offers to final users (police directions, diplomatic missions, consular missions, immigration offices, etc.) timely access to information needed for completion of their tasks. All the member countries input the information. Thanks to the database of the information system, authorities of the member countries have on their disposal a common fund of vital national information, which can be used in achievement of goals indicated in the Article 93 of the Convention. In the beginnig of 2001 there were about nine million warrants of arrest and warnings and two million personal data input in the Information System.
The input into the Schengen Information System consists of two kinds of information: about a particular kind of people and about a particular kind of objects and vehicles, specified in the Convention. In principle, the information system contains only information of a permanent character, while the other information are not the subject of input. Persons whose applications for asylum were refused are not being input into the information system (they can only be input as "persons not to be permitted entry"). The access to the information belonging to the Information System is regulated by interior law of every member country. The right to access, as well as the right of direct request of information, is approved only to institution of the member countries dealing with border control, police and customs checks, bodies authorised for coordination of these activities, bodies that issue visas and residence permits and similar institutions. The Convention also contains legal guarantees aiming at protecting the information system from potential abuses. These provisions are given precedence over internal provisions of the member countries. Information can be used for purposes listed at every registering. It is prohibited to copy them (except for technical reasons), as well as to move (copy) the information from the information system to national databanks. Every member country is responsible for accuracy, up-to-dateness and selection of information input into the information system, and it is exclusively authorised to add, change and delete them. Every person who is registered in the information system has right to have the evidence of the information related to him/her. Communication of information can be denied if there is a possibility to endanger performance of tasks because of which the person was input into the System, as well as for protection of fredoms and rights of other people. Information are not communicated during discrete supervision. The member countries take measures for personal data protection based upon two international documents: Council of Europe Convention for the protection of individuals with regard to automatic processing of personal data from 28 January 1981 and the Recommendation No.R (87) 15 of the Committee of Ministers to Member States regulating the use of personal data in the police sector (adopted by the Council of Europe Committee of Ministers on 17 September 1987).
The Executive Committee The task of the Committee, founded by the Convention, is to normatively regulate procedure of enforcement of all the provisions contained in the Agreement from 1985, as well as to control their implementation. Every member state has right on one place in the Executive Committee. Countries are represented by ministers who are responsible for implementation of the Convention. Ministers are authorised to request expert help in their work for the Committee. The Executive Committee makes decisions unanimously. Decisions of the Executive Committee must be included into interior legislation of the member states. The Committee meets alternately on territories of the member states. Meetings are held as often as it is necessary for effective performance of tasks formulated in the Convention. Most of the tasks of the Executive Committee relates to technical issues. However, besides the tasks concerning implementation of the Convention and coordination of differences among the members in the process of application, the task of this body is to interprete
provisions of the Convention in cases of dispute or ambiguities in the contents and meaning of the text of the Convention. Finally, it should be emphasised that the Executive Committee is not liable to jurisdictional nor political control during perfomance of their tasks, which is the fact that opened the questions of protection of parliamentary control from decisions made by the Executive Committee, as well as the question of potential role of national parliaments in creation of proposals submitted to the Executive Committee. If we put the list of countries from the Anex II to the context of these conditions, we can separate them into three groups. The first group would be cosisted of Monaco, San Marino and Switzerland. They make the same group primarily for the reason that it is not likely that they will join the European Union, but, regardless that fact, the relations of these countries with the EU Member States are characterised by unbreakable economic and political connections and partnership. Above all, none of these countries had any problems with massive population drain in near past, especially not through illegal immigration to other countries. The security situation in these countries can be evaluated as completely stable. The question of stability of this region has not been raised since the second World War. Further, all the three countries have exceptionally good diplomatic relations with the EU members. Monaco and San Marino, as very small states, and Switzerland, as a state with a longtime politics of neutrality, have not had any problems in moving through countries of today's European Union for more than fifty years. Just for the reason that the relations of the EU with this group of countries have been on the exceptionaly high level for a long time, the history of these relations and the kind of connections cannot be compared to relations with other countries listed in the Anex II. The second group consists of Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia. What do they have in common is the fact that it is certain that on 1 May 2004 they will become members of the EU. There are no such uniform criteria for estimation in this group. All the countries of the former Eastern Block had problems with illegal emigration (in cases of Slovenia, Cyprus and Malta this problem was not so striking). Cyprus had security problems and problems with regional stability, as well as Slovenia (in 1990s, due to vicinity of war in Croatia and to short armed conflicts with the army of the Socialist Federal Republic of Yugoslavia on its territory). However, in time when the list was made, all these countries were official candidates for membership in the EU, and their international political relations and cooperation with the Union were on the high level. The membership in the EU implies for these countries an obligation to join the Schengen system. However, these countries will not be in the Schengen zone in a strict sense for a certain period, as regards free movement through the whole territory. There will still be border controls between old and new member states. It is not precisely known low long will these countries stay outside the Schengen visa system, but according to some estimations it would last for several years. However, all new members will have to insist upon visa regime for all the countries from the Annex I, and the criteria for visa issuing will be identical to those for the Schengen visas. The third group of countries include Bulgaria, Croatia and Romania. These three countries, also, make efforts to join the EU, but they are still not in the group of countries that will become members in 2004. In the previous period all three of them had great problems with illegal emigration to the Schengen countries. In view of security, Croatia has not become stable before long (after 1995). On the other hand, the international political relations of these three countries with the EU are on the considerably high level - they all have the status of official candidates for the EU membership. As for Romania, though, there is a circumstance that
separates Romania not only from the other members of this group, but also from all the other countries from the Annex II. Namely, Romania entered the "White List" conditionally. To be more precise - it had been decided that the Regulation related to Romania would be enforced when this country met certain conditions, listed in the Article 8, point 2. In short, Romania should have submitted a report on measures it would had undertaken in the fight against illegal immigration to the EU countries. By the decision of the EU Council No 2414/2001 from 7 December 2001 it was confirmed that Romania had made a significant progress in prevention of illegal immigration, in improvement of border controls and in visa policy reforms. As a conclusion, it had been decided that the previous Regulation could be applied to this country as well. We can see that all the countries from the Schengen "White List" have good politcal relations with the EU members. All the countries from the Annex II - except Switzerland, Monaco and San Marino, for their specific reasons mentioned above - are candidates for the EU membership. Cyprus, Czech Republic, Estonia, Hungary, Poland and Slovenia entered into negotiations in 1998, and Bulgaria, Lithuania, Latvia, Malta, Romania and Slovakia in the beginning of 2000. Croatia entered into negotiations on 21 February 2003, as the first Western Balkan country that officialy applied for the EU membership. In view of this, it is worth mentioning that Turkey is the only country that officially applied for the EU membership, but it is not on the "White List". It can be concluded that the best and shortest way for joining the group of countries whose nationals are exempt from visa requirements for shorter stay in the Shengen countries is to enter into serious processes of European integration. This conclusion can be illustrated by the fact that all the applicant countries for the EU membership (except one) are on the "White List". The EU enlargement strategy has been successful so far. The transition processes in applicant countries has been significantly accelerated by the fact that to these countries were presented a possibility of the EU membership. The enlargement of the EU is seen as a process that will not be ended with the acceptance of new members in 2004. On the contrary, the European Union supports new candidatures and sends a message of encouragement to those countries that have not been included in this round to continue with policies of approaching to European standards. The conditions for association to the Union have been defined in 1993 by a document entitled "Copenhagen Criteria". Basically, they include the following: Political criteria: stability of institutions that guarantee democracy, rule of law, human rights and minority rights; Economic criteria: market economy, as well as building of capacities which would help coping with competition and market rules within the Union; Possibilities of taking over membership obligations, including loyalty to objectives of political, economic and monetary union.
The Schengen Agreement, "White List" and the Balkan Countries There is a reasonable fear that cross-border contacts, as well as the possibility of travelling without restrictions from East to West could become even more difficult than they had been after the fall of the Berlin Wall. This impression is present in the Balkan countries, whose nationals have already begun to suffer from the so-called "syndrome of the Schengen fortress".
Having in mind that the basis of (future) development depends upon openness of borders and free movement, the reasons for worry are clear. The Schengen Agreement is the basis and the very essence of the existing visa regime in Europe. Namely, the agreement on gradual lifting of border controls on the common borders has been reached among governments of the Kingdom of Belgium, the Federal Republic of Germany, the French Republic, the Grand Duchy of Luxembourg and the Kindom of the Netherlands on 14 June 1985 in Schengen. The Convention applying the Schengen Agreement was signed in June 1990, and many other countries accessed later on. The other European countries took advantage of some of the Agreement provisions upon special contracts concluded with the Schengen member countries. However, it was not the classical visa-free regime among countries (as those between Serbia and Montenegro and Romania, for example). The common goal was coordinated through agreements among authorised governmental bodies, and this goal was crime prevention and protection of the countries comprised by the Schengen Agreement. This form of cooperaton was the beginning of European transformation from economic integration to a region without strict state boundaries, with common economic, monetary and security politics.21 On 15 March 2001 the European Council has adopted the so-called White and Black List of the Schengen Agreement. It is, in fact, the Annex I of the European Council Regulation (EC) No. 539/2001,22 which lists the third countries whose nationals must have visas when crossing external EU borders, while the Annex II of the same document lists the countries whose nationals are exempt from this request if they stay on the territory of the EU not longer than 3 months.23 Provision of the Regulation do not affect Ireland and Great Britain, which do not take part in measures "for freedom of movement" through the European Union, but have their own standards concerning visa regimes. The question is: what are the criteria for creating these list and could they be changed? We can find criteria in the Article 5 of the introduction of the Regulation No.539/2001, where it is said that "the determination of those third countries whose nationals are subject to the visa requirement, and those exempt from it, is governed by a considered, case-by-case assessment of a variety of criteria relating inter alia to illegal immigration, public policy and security, and to the European Union's external relations with third countries, consideration also been given to the implications of regional coherence and reciprocity." Mixing political and legal conditions, expectations and encouragements, this definition leaves room manoeuvring to the EU (more precisely, to the countries of the Schengen Agreement) and presents almost an institution of discretion right of the EU to estimate whether a particular country is ready to move from the Black to the White List. 24 An example of putting Romania to the Annex II is indicative. Romania was "conditionally" put onto the White Schengen List, but the EU stressed that what has been written will become operative when conditions are met. On the request of the European Commission Romania had to inform it on its intention concerning illegal immigration of its nationals who reside in the countries of the Schengen Agreement, including the answer to the
See www.citizenspact.org.yu See Official Journal of the European Communities, L 081, 21/03/2001 P. 000 -0007 (www.europa.eu.int) 23 Some of the countries in the Annex II are Albania, Belarus, Bosnia and Herzegovina, Serbia and Montenegro, Macedonia, Moldova, Turkey and Ukraine, while in the Annex II one can find Bulgaria, Croatia, Cyprus, Czech Republic, Hungary, Poland, Romania, Slovakia and Slovenia. 24 See The Schengen Challenge and its Balkan Dimensions, Peter Kovacs, CEPS Policy Brief No.17, Centre for European Policy Studies, March 2002 (www.ceps.be).
question of repatriation of these persons. The Comission informed the European Council about this process. This means that putting Romania on the White List (by decision of the European Council, on proposal of the European Commission) was conditioned by registering "undoubted progress" concerning issues of illegal immigrants, visa regime and border control. Registering this progress, the European Commission suggested to the European Council to exempt Romania, from January 2002, from the list of countries whose nationals must possess visas for entering the Schengen territory.25 From political point of view, it was a great encouragement to Romania. Such move of the EU would certainly stimulate other countries in the region to go through the same process and to meet such and similar conditions, and, accordingly, to be removed from the Black List. According to the Article 3 of the Regulation No. 539/2001, respecting the European agreement on visa exemption for refugees, signed in Strasbourg 1959, signatory countries of the Schengen Agreement will require from stateless persons and refugees to possess visas if they have travel documents of countries whose nationals are required visas to enter the Shengen territory. If they possess documents of countries whose nationals are exempt from visa requirements, refugees and stateless persons mights be exempt from visa requirements, but it is not necessarily the case. There are no clear or detailed explanation of criteria according to which some countries have been put to the Annex II. The decision of the Schengen countries was made without enough transparency and public debate, but, being unanimous, it presents an important part of the legal system. Greater problem is the fact that there is no obligation for the Commission to reconsider the list after some time.26 Further, there is no explicit list of conditions that should be met for the "transfer" from one list to another. We can only suppose that in this process it is advisable to follow experiences of the countries that have succeded in it.27 Giving into account the impact of the Schengen Agreement on people in the region, we can divide the Balkan countries into two groups. It is obvious that there is no bad impact on movement of nationals of Slovenia, Bulgaria and Croatia, for they belong to the Annex II. Romania will join them soon. On the other hand, nationals of Serbia and Montenegro, Macedonia, Bosnia and Herzegovina and Albania are not in such a good position. All this shows that it is important to strenghten legislative activities, as well as to initiate public debates on these issues.It is very important for the region to cooperate with neighbouring countries, especially in case of national minorities. It is important to avoid mechanical expansion of the Schengen rules which could have negative impact on human contacts and bilateral relations among neighbouring countries. It is very likely that the "arrival" of the Schengen Agreement to SEE will be a new challenge to complete implementation of the Council of Europe Framework Convention for the Protection of National Minorities in the countries in region.
See Regulation of the Council of the European Union (EC) No. 2414/2001 from 7 December 2001, which complements The Regulation of the Council of the European Union (EC) No. 539/2001which contains the list of the third countries whose nationals must have visas when crossing the EU external borders and lists of those whose nationals are exempt of this request (Official Journal of the European Communities, www.europa.int ) 26 See EU Visa Exemptions: The White List, Statewatch European Monitor, www.statewatch.org 27 See Vizni reţim iz Šengenskog sporazuma (Visa Regime from the Schengen Agreement), Marko Nikolić, Evropsko zakonodavstvo 2/02, Ministarstvo pravde Republike Srbije i IMPP, Belgrade 2002.
6. The Role of Visa Regime
Visa regime seemed as a good idea in a certain period. It was conceived as an instrument for preventing entrance of persons not to be permitted entry to the countries with visa regime, as well as to protect countries from excessive immigration. During bloc politics the function of visa regimes was also to prevent the influence of opposing ideology, as well as movement of common citizens, for it was considered potential threat for solid block division.28 The function of visa regime was trasformed after the fall of the Berlin Wall. At time of disintegration of Yugoslavia, numerous European and other countries worldwide introduced visas for nationals of the former SFRY to stop uncontrolled flood of refugees. The next phasis was the additional strenghtening of visa regime for citizens of the FRY, as a part of the total package of sanctions of the UN Security Council.29 The situation did not change despite the fact that wars were over, and that the new, democratically oriented governance has been established in Serbia and Montenero. It is usually heard today that visa regime is the most efficient instrument in the fight against cross-border organised crime. Though partly true, such a reason is fallacious in many aspects. In most cases, these are criminals who provide common people with visas and other documents for an (un)reasonable sum of money. It is necessary to give particular consideration to this problem. According to EUROPOL, concerning human trafficking, the main problem in the SEE region are not borders nor visas, but the fact that most of the victims of human trafficking end up in the EU countries, using original documents.30 Another recent probem - the problem of fake applicants for asylum from Kosovo, justifies the claim that criminals organise themselves across the borders, regardles national or any other kind of differences, united around the idea of taking money from people who had been repeatedly trying to legally obtain immigration visas for some prosperous countries by "producing" and selling original UNMIK passports, without any discrimination towards "customers". Therefore, the very essence of visa regime must be considered from another standpoint - namely, to consider the following: whom does it really stop, and who profits from it. And who does really benefit from this situation? In the process of approaching to the EU in this field it must be taken into account that there are the whole groups of people whose interests contradict to those of states and citizens, for visa abolition would imply loss of profit for a part of criminal milieu. This was a great problem in Bulgaria. Despite obvious rigidity of visa regimes in Europe, there are certain flexibility in them. We will take the example of the Schengen Agreement. In spite of the built-in dichotomy between countries concerning visa requirements, certain territories enjoy some kind of a special status within states (they are subjects of special regimes). The list of these entities can be found in the European Council Regulation No. 539/2001. In accordance with this document, China belongs among states which must have Schengen visas, while citizens of Hong Kong and Macao - the special administrative units - are exempt from visa requirements. Palestinian citizens
Therefrom the title "Iron Curtain", which symbolically describes hermetically closed borders between East and West, and which is used even today describing closed societies under autoritarian regimes. 29 See more on www.citizenspact.org.yu 30 See Communication on stealing of 930 passports from the Croatian Consulate in Mostar in April 2003, www.mvp.hr
(many of them are not refugees, but de facto Israeli citizens) are among persons who need Schengen visas, while possessors of Israeli passports do not have this obligation when they travel to the Schengen countries. As Hungary will become a full member of the EU, various measures have been undertaken in order to make future visa regime for Serbia and Montenegro as "painless" as possible. In view of this, special consideration is given to ethnic Hungarians who are nationals of Serbia and Montenero, and who suggest dual citizenship as the most appropriate solution.31 As for nationals of Serbia and Montenegro who are ethnic Slovaks, it is clear that Slovakia cannot abolish visa regime for Serbia and Montenegro for its obligations towards the EU, whose member it will become soon. However, from June 2002 Slovakia applies a certain form of liberalisation of visa regime, contained in simplified procedure for obtaining Slovak visas for nationals of Serbia and Montenegro.32 Having in mind that there are worries that ethnic Slovaks might become "collateral damage" of introduction of visa regime between Hungary and Serbia and Montenegro, it is likely that there will be established special facilities for ethnic Slovaks who are nationals of Serbia and Montenegro when travelling to Slovakia. These examples show that, despite "obligatory" differences between countries in the Annex I and those in the Annex II and despite prohibition of discrimination by nationality, which implies that it is forbidden to discriminate among nationals of the same country, there is a kind of "derogation" of rules in the Schengen Agreement. In this context, the question of dual citizenship is open to debate. Namely, this right cannot by any means be denied to persons who have legal right to it. In view of this, the Schengen Black List, i.e. introduction of rigid visa regimes for nationals of certain countries, does not make much sense, because such implementation of the principle of state as a subject of international law creates a kind of generalisation (discrimination?) of citizens on the basis of nationality. This can lead to completely distorted application of provisions in practice, i.e. to getting the EU provisions around. It would be appropriate to consider such a criterion, and this is just what is expected after improvement and modernisation of border controls in the region. It seems that the essence of this process is to avoid making such lists in future. It is obvious that the very definition of visa regime needs thorough reconsideration, especially in cases of the European countries. It is doubtless that the fight agains organised crime on all levels is of the utmost importance, but visa regime is not the efficient instrument in this fight. There is no need to talk much about problems caused by visa regime considering international economic cooperation, tourism and cultural connections in the region. Modern business does not allow vexed national manoeuvrings that can cause irreparable damages. This consideration of essential deficiencies of visa regime does not aim at leading to some sort of a utopean vision. As an alternative to visas, legal systems in most countries in the region allow tourist border passes (one can get right to enter a country at border crossing for a limited period, without a special procedure). It is better to achieve more efficient control of movement of people and goods through modernisation of police (not extending their authorities, but modernising their equipment), as well as by computerisation and modernisation of border crossings. It should be kept in mind that rigid visa regime can only be a bad byproduct of " carrot and stick " policy, for keeping a country in such a kind of isolation can motivate only criminals. To a country without solid system institutions it can cause only troubles with implementation of the principle of rule of law, not to mention political imprudence of state
See the chapter on Hungary See The Slovaks of Vojvodina: A Traditional Bridge for Cooperation, Miroslav Lajčák, Review of International Affairs, www.diplomacy.bg.ac.yu
officials in some of the countries in region who threaten the EU citizens with reciprocal measures, reacting emotionally to introduction of visa regime or to putting their countries to the Schengen Black List.33
This was the idea of the authorities in Macedonia and Bulgaria.
7. General and Particular Problems Concerning Visa Regimes
Most of the European countries introduced visa regime to the then Federal Republic of Yugoslavia as a part of the package of sanctions of the international community, which provoked countermeasures. During 2001 Serbian media had been frequently mentioning that the signatory countries of the Schengen Agreement could alleviate and then completely abolish visa regime for nationals of the FRY.34 It had been said that liberalization might follow if the country became politically and economicaly stable, for in that case the Schengen countries would not be flooded by emigrants. "Alleviation" of visa regime for Serbia and Montenegro by the Schengen countries has not happened until today. As late as in May 2003 the initiative on the governmental level has been started for introducing visa-free regime for the EU citizens who come to Serbia and Montenegro. At the meeting on 29 May 2003 the Council of Ministers of Serbia and Montenegro made tha decision on abolishing visas for entering Serbia and Montenegro and stay up to 90 days for all kinds of travel documents for nationals of Germany, France, Italy, the Netherlands, Belgium, Luxembourg, Great Britain, Ireland, Spain, Portugal, Greece, Denmark, Sweden, Finland, Austria, Switzerland, Norway, Iceland, Monaco, Liechtenstein, Vatican, Andorra, San Marino, Israel, Cyprus, Malta, Czech Republic, Slovakia, Poland, Slovenia, Lithuania, Latvia, Estonia, Croatia, the United States of America, Canada, Singapore, Republic of Korea, Australia and New Zealand. It has been decided that the nationals of Albania, Russian Federation and Ukraine may enter the Republic of Montenegro and stay in tourist visits, individually or in an organised group, with passports only (without visas), while the nationals of Bosnia and Herzegovina, Slovenia, Croatia and Macedonia may enter the Republic of Montenegro and stay in tourist visits with passports or identity cards. This decision of the Council of Ministers of Serbia and Montenegro has considerably alleviated aliens' entrance to Serbia, and especially to Montenegro. It presents a measure of liberalisaton of visa regime for, inter alia, the EU citizens, which is a positive signal of progress towards the EU direction. However, this initiative was preceded, at the end of April 2003, by the Administrative Taxes Act35, according to which the price of tourist passes for entering Serbia rose by 1000% Tourist passes for entering Serbia and Montenegro were introduced in 2001, enabling foreign citizens to get passes for single entries and stay in Serbia and Montenegro up to a month directly on border crossings, without complicated procedures in consulates. Although the effect of taxes has been minimised by the later decision of the Council of Ministers of Serbia and Montenegro, the question of charging this administrative tax was a problem before taking the decision of the Council of Ministers of Serbia and Montenegro and it can arise again at the expiration of 90 days.36 However, visa policy of Serbia and Montenegro is not the only problematic one. The region of SEE is interwoven by the complicated network of visa regimes. This makes regional cooperation more difficult, as well as endangers regional stability and security, so the lagging behind the European progress becomes more and more obvious.
See www.b92.net, 13 June 2001. See Službeni glasnik RS, 43/2003, p. 19. 36 If this supposition is true, it means that the nationals of the above-mentioned countries could avoid payment of entry taxes if they enter Serbia through Montenegro. In this case it would affect tourists who must travel to the Montenegrian coast through Serbia and outside the period of 90 days, for they would have to pay entry tax in Serbia, despite the fact that their final destination is Montenegro, which they could enter without payment. If the above decision is not made a long-term one, there is a possibility of a mass evasion of the law.
It should be kept in mind that the process of liberalisation of visa regimes towards the counties outside the EU is a very complicated one. The Schengen Agreement obliges its signatories, and one of the obligations of the countries that concluded the Stabilisation and Association Agreement with the EU is the obligation to solidarity with third countries; therefore, they do not have right to conclude bilateral arrangements on visa abolition with other countries. If a country is on the list of countries whose nationals arerequired visas, all the countries must agree to liberalise visa regime before exemption of those country from the list. 37 Signatory countries of the Schengen Agreement, as well as candidate countries, are therefore very cautious when deciding to allow to a national of another country "entry, exit, stay or transit through its territory". With a view to preventing "entry of a person not to be permitted entry from another country and/or excessive immigration", a special attention has been payed to persons who belong to the so-called "risk groups" (unemployed, students and other persons who do not have regular income). There are additional difficulties for nationals of those countries that must have visas for entering the Schengen territory. One of them is specially limited possibility for assylum applications, which is by the Schengen Convention and the Dublin Convention38 limited to only one signatory country. This problem has already provoked numerous objectives by humanitarian organizations.39 The list of special problems relating to the network of regional visa regimes is a particularly long one. For example, implementation of the Schengen Agreement is discriminatory as regards the part of the population of Bosnia and Herzegovina. 40 Namely, the Schengen countries and most of the other European countries have visa regime towards Bosnia and Herzegovina, but the nationals of Bosnia and Herzegovina who are ethnic Croats are exempt from it. Using their right to dual citizenship and, consequently, using Croatian passports, they are exempted from restrictive measures.41 Another example is the case of Kosovo, Serbian province under protectorate of the United Nations since 1999. Although UNMIK has been issuing travel documents to the citizens of Kosovo, some western countries did not recognize them in the beginning, so for the citizens of Kosovo entrance was denied. Today's situaton is somewhat better - UNMIK passports are recognized by the EU, Turkey, most of the SEE and CEE countries, USA, Canada, Australia, but they are still not recognized by Bulgaria, Russia and Serbia. Yet, certain problems arise from time to time. Organisers and participants of the international conference on media rights held in Ljubljana in December 2001 pointed at it in a protest letter addressed to Slovenian authorities, because some of the participants had failed in repeated attempt to get visas in Slovenian consulate in Skoplje, despite the fact that they had valid UNMIK documents.42 On the other
See Sporazum iz Šengena: Za Evropu bez granica (The Schengen Agreement: Towards Europe without Borders), dr Duško Lopandić, Milutin Janjević (eds.), IMPP, Belgrade, 1996. 38 The Dublin Convention regulates jurisdiction issues concerning asylum applications 39 See Sporazum iz Šengena: Za Evropu bez granica (The Schengen Agreement: Towards Europe without Borders), dr Duško Lopandić, Milutin Janjević (eds.), IMPP, Belgrade, 1996. 40 See Balkan - Pogled u budućnost: Bez unutrašnje i regionalne stabilnosti nemoguće je u Evropu, Ţivorad Kovačević (The Balkans - Look into the Future: It is Impossiboe to go to Europe without Iinterior and Regional Stability) , MeĎunarodni problemi, IMPP, br 3/2002, Belgrade 2002. 41 "Croatia respects the principle of non-interference regarding interior affairs of a neighbouring country, but in the same time have in mind its own constitutional obligation to protect interests of Croats who live outside their native country", see www.mvp.hr 42 See www.mirovni-institut.si, Protest to the Slovenian Authorities - Warning on the unacceptable policy and practice regarding the visa regime and the treatment of citizens of certain SEE countries on the Slovenian border (December 2001)
hand, the citizens of Kosovo face the problem of visas - the only countries that have not requested visas from the possessors of UNMIK passports so far are Macedonia, Albania and Bosnia and Herzegovina.43 The applicant countries have to introduce new restrictive measures regarding their neighbours. This will most affect free crossing of borders for national minorities, as well as economic, political and social connections with neighbours. For exampe, a great number of ethnic Hungarians in Vojvodina will find a contact with their country of origin more difficult; besides, it could stop cross-border trade. Further problem at numerous places in the region is caused by the fact that peasants in many cases must cross the border to get to their fields. They often have problems if they "import" agricultural products from their fields "abroad" (they need special documents to transport products from nearby fields, and in some cases it implies customs duties; the ownership of these fields dates from the pre-war period, before establishment of new borders e.g. village Metković on the border between Bosnia and Herzegovina and Croatia). Here are further examples. Schoolchildren from the villages Neštin and Vizić in Srem cross the state border several times a day to get to their school. If they want to cross the border on the territiry of the town Čabar, Croatian citizens must have border passes that cost 200 Kunas, while the same document in Slovenia costs about 2000 Slovenian Tolars, which equals to 70 Kunas. Near the border crossing Zamost between Croatia and Slovenia there is a factory that employs both Croatian and Slovenian nationals. Since the factory works in two shifts, it was necessary to solve the problem of crossing the border outside the working hours (6-22 h). The Croatian visa policy towards the FRY/Serbia and Montenegro is worth mentioning for its rigidity. At first, the rigid visa regime was justified by potential flood of illegal immigrants from the other South Eastern European contries to Croatia (both as a country of destination and a transit country). It is known that in Bosnia and Herzegovina, whose citizens do not need visas to enter Croatia, there is (according to the reports of foreign NGOs and international organisations) a centre of trafficking in human beings44. Serbia and Montenegro are among countries with this problem, but in a significantly less measure than in Bosnia and Herzegovina.45 The problem must by no means be neglected, but it is not the sufficient reason for the rigid visa regime that Croatia had regarding Serbia and Montenegro. Further, we should not forget the problem which is still topical, namely the complicated process of regulating rights of Serbian refugees from Croatia as a potential reason for Croatian resistance to liberalisation of visa regime regarding its eastern neighbour. Several weeks before abolition of the visa regime with Serbia and Montenegro during summer season there was a firm attitude in Croatia that there is a possibility of liberalisation, but not of the abolition of the visa regime for the nationals of Serbia and Montengro. Although the visa regime has been abolished at last (during summer season), it is neccessary to pay special attention and to take efforts to make this decision permanent. One of the reasons for this is the problem of return of refugees in the region. As regards refugees from Croatia who acquired citizenship of Serbia and Montenegro, there is a need to regulate their freedom of movement in a non-discriminatory way. This means that it is necessary to find a just solution, respecting the obligations that Croatia accepted by the Stabilisation and Association Agreement, but also respecting fundamental rights of these people.
See more on www.unmikonline.org See Trafficking in Human Beings in Southeastern Europe, B. Limanowska (ed.), UNHCR/OSCE/UNICEF, 2002. 45 Kosovo is under protectorate of UNMIK; Serbia and Montenegro has no jurisdiction under this part of its territory.
The High Commission for Refugees and international organisations can significantly contribute lobbying for visa abolition and/or liberalisation of visa regimes. Stubborness and lack of political will belong to previous regimes in this territory, and they should not be the practice of both new democratic governments and international agents in the Balkans.
8. Human Rights Issues
The right to freedom of movement is one of the "oldest" rights that initiated the very idea of a gradual European integration. This right can be found in the early Treaty Establishing the European Community (Treaty of Rome, 1957) and it marks the start of the process of free movement of workers on the whole territory of the Community. This opened the possibilities for employment without discrimination, as well as enjoyment of rights derived from labour relations. The existing concept of freedom of movement has subsequently been extended by establishment of the common interior market that includes free movement of goods, services, capital and people, regardless their profession.46 The advocates of liberalisation/abolition of visa regime among the countries which are not the members of the Schengen Agreement, as well as among the Schengen countries and the third countries, often emphasise the fact that visa regimes deny the right to fredom of movemment. It is important to note that the right to freedom of movement on the territory of a particular country is guaranteed to persons who are under its jurisdiction. The right to freedom of movement is prescribed in the international documents on human rights. The Article 12 of the International Covenant on Civil and Political Rights reads as follows: Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. Everyone shall be free to leave any country , including his own. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order , public health or morals or the right and freedoms of others, and are consistent with the other rights recognized in the present Covenant. No one shall be arbitrarily deprived of the right to enter his own country.
Therefore, a state is obliged to guarantee freedom of movement on its territory to persons who are under its jurisdiction, as well as not to obstruct their travel and return to their country. This obligation does not extend over state borders, therefore a country cannot guarantee freedom of movement in another country. A country has discretion right to prescibe conditions for entrance of foreign citizens to its territory. However, it must not prescibe conditions which contradict to international standards on human rights. In addition, it must pay a special attention to the generally accepted prohibition of all the forms of discrimination, as well as to guarantees regarding refugees and applicants for asylum prescribed in the international conventions on human rights. The essence of this right is not the active one - it does not oblige a country to do something, but to abstain from preventing people to leave their country and to return to it without problems.47
See more in Državljanstvo u savremenoj Evropi, Vida Čok, Centar za antiratnu akciju, Beograd 2002. An example of prevention of freedom of movement was the Decision on payment of a special exit tax in Federal Republic of Yugoslavia, abolished after reform forced had came to power in Serbia (see Sl. list SRJ, 61/2000). This decision abrogated one sublegal act that directly restricted constitutional rights of nationals of FRY (See more in Ljudska prava u Jugoslaviji 2000, Beogradski centar za ljudska prava, Belgrade, 2001).
A state has an obligation to manage by all legal means formal freedom of movement of people, goods and ideas across its borders, because the de facto connection has already been established thanks to the progress of science and technology. However, cross-border freedom of movement is not something that imposed itself as a legal obligation, but the conditio sine qua non of every kind of progress, economic in the first place.48 It is up to a state to make efforts to meet this condition, thus enabling the influx of investments, improving tourism, etc. The liberalisation of the visa regime towards the EU, as well as within the SEE region, would undoubtedly increase the regional cooperation and understanding and intensify all types of communication with the EU and its citizens, accelerating the European integration of the whole region of SEE. The Schengen Agreement was concluded because of lifting the control of movement of people, regardless their nationality, on the internal borders of the signatory countries, and because of coordination of control on the external borders and creation of common visa policy. This "extension of borders", conditionally speaking, i.e. enlargement of the territory under the jurisdiction of the EU legal system, has brought greater freedom of movement for citizens who live on the territory of the Member States. It opened the possibility of employment on the newly-established market, and achievement of other rights for persons who live on the territory of the Member States. However, association agreements concluded by the applicant countries from the Middle and Eastern Europe do not contain provisions on freedom of movement of their citizens. The applicant countries acceded to the Schengen Agreement after the accession to the EU, and by then they had already been obliged - upon the obligations from the accession agreement -to introduce visa regimes towards those countries which the EU had such regime towards (this is/will be the case with the SEE countries, e.g. Croatia). However, as the possession of passport is dependent on citizenship, it means that the freedom of movement (i.e. right of leaving a country and of return to it) could be denied or restricted if the question of citizenship is not settled. In Serbia and Montenegro, for example, after already five years of application of the Yugoslav Nationality Law (Sl. list SRJ, No. 33/96), the law on modifications of this law came into force in March 2001(Sl. list SRJ, No. 9/01). The new law prescibed that the Yugoslav citizenship can be acquired by citizens of the former Yugoslav republics who resided in FRY on the day of enactment of the Constitution or refugees on the territory of the FRY, without the condition to renounce their previous nationality, which significanlty improved the situation of refugees.49 Dual citizenship facilitates movement between countries whose citizensip a person possesses. In the previous practice, refugees who acquired citizenship of the FRY had to renounce their previous citizenship (Bosnian, Croatian), which meant the loss of rights acquired upon it.50 It is very likely that the "arrival" of the Schengen Agreement at the borders of SEE will become a new challenge to efficient and complete implementation of the Council of Europe Framework Convention for Protection of National Minorities in the countries in region.51 Unfortunatelly, the question of deprivation of human rights in the region is connected with the question of (non)existence of visa regimes, both within and outside the region. The example for it is trafficking in human beings, as a form of cross-border organised crime, but also
See project "Mini Schengen" www.citizenspact.org.yu See more in Ljudska prava u Jugoslaviji 2001, (Human Rights in Yugoslavia 2001), Beogradski centar za ljudska prava, Belgrade 2001 50 See www.b92.net, The Law on Citizenship, February 2001. 51 See more in the chapter on Hungary.
as a form of violation of generally accepted prohibition on slavery, right to freedom, prohibition on discrimination, prohibition on torture and severe violation of children's rights. It is a result of systematic crisis in the region of SEE, of unemployment and the low educational level. We can also talk about violation of human rights in the fight against this form of organised crime so far. There are deficiencies in national legislations which do not incriminate this act, or incriminate it in an inadequate way. Further, we can talk about absence of programmes and guarantees for protected witnesses, about absence of national strategies in the fight against trafficking in human beings, about insufficient power of jurisdictional bodies, about corruption of police and other state officials, as well as about insufficient cooperation between governmental, nongovernmental and international organizations. It is the state that violates human rights if it fails to protect them, or does not take actions to stop the violation. Also, the state violates human rights of its citizens if it does not prescribe an adequate legal remedy for their violation. In this view, the state is obliged to take all necessary actions, both on national and regional level, which presupposes its full participation in regional and international initiatives dealing with this problem. Only when the rule of law is established within a state itself, and therefore respect and implementation of human rights, can we expect a postive response of other countries in the region, as well as of the European union. According to the statement of the head of the OEBS Mission in Serbia and Montenegro from March 2003, the problem of trafficking in human beings on the borders of the South Eastern Europe must be proffessionally solved to make possibilites for openning the question of liberalisation of the visa regime with the countries of the Schengen Agreement. The paper Borders and discrimination in the European Union 52 written by the Migration Policy Group in Brussels deals in more details with the relation among the EU provisions and it influence to the citizens of the third countries who enter the EU territory. The paper attempts to show that the prohibition on discrimination on the basis of race, ethnic or national belonging and confession has been violated by the EU provisions relating to the procedure of visa issuing and border crossing for the nationals of the third countries. The provisions themselves are problematic, but the paper stresses the way of their application in practice. According to the paper, it is evident that there is a gap between treatment of the EU citizens and the nationals of the third countries as regards accession to the EU. However, this difference in treatment has been accepted by the European Court of Human Rights upon the fact that the EU regime presents "a special legal system". According to the rules of this system, there is a possibility of different treatments between the nationals of the third countries and the EU citizens when crossing the external EU borders. Such an attitude of the European Court of Human Rights is one of the obstacles for taking actions aimed at stopping such a practice. It has been also concluded that the criteria for putting countries on the lists of welcome or unwelcome (refers to the Annex I and the Annex II) includes a risk of discrimination. In accordance with the established differences, it follows, for example, that a great part of the world population of Islamic confession needs visas for the EU (only three countries with majority Muslim population are on the Annex II - Brunei, Malaysia and Singapore). Much is expected from the Charter of Fundamental Rights of the European Union. Despite its declarative character (it is not a legally binding document), it is expected that the Charter will influence development of the EU legal system - the European Court of Justice would recognize it as a constitutional part of
Borders and discrimination in the European Union, Ryszard Cholewinski, Immigration Law Practitioners' Association / London and Migration Policy Group / Brussels.
the communitarian law in its decisions and the relevant institutions would rely upon it when adopting future legal norms and developing the EU law. It is suggested that in future differences in treatment of certain groups of people in the field of immigration should be allowed only when they are followed by objective justification. Legitimate, relevant and complete arguments for different treatments must be accessible and published, especially in cases when they are based upon statistics related to illegal immigration. Discrimination might be justified only if the reasons for it are of humanitarian nature - namely, reasons in the context of positive discrimination (e.g. on the benefit of a particular ethnic group, aiming at its protection). Differentiation among the third countries on the basis of general criteria relating to risks of illegal immigration and/or crime is very disputable from the non-discriminatory point of view. If the EU still insists upon such a kind of diffentiation, it can avoid accusations for nondiscriminatory behaviour only if it adopts strict and objective criteria, based upon reliable statistics, by which the risks of illegal immigrations can objetively be seen as regards to a particular country. Such a system must also possess transparent mechanism for monitoring situation and relevant development in that country, which would be the basis for taking decisions concerning introduction of visa regimes or moving the country from the black list. The transparency in practical application of the EU provisions concerning borders and visa policy is of the utmost importance. Valid and up-to-date statistics on issued visas and rejected applications, as well as on "return from the border" must be published and accessible to all. It is necessary to make clear differences between rejection of visa applications and the cases when a visa is denied because the applicant did not submit the necessary documentation. Further, it is necessary to keep the evidence about citizenship, racial and/or ethnic belonging of the persons whom visas are refused and of persons who were rejected at borders, in order to collect information on the most frequently rejected ones. Collected information should be carefully analysed. As a form of human rights protection, the paper suggests introduction of a special ombudsman for issues concerning visas, whose task would be to monitor the practice on the EU external borders and in the embassies and cosulates of the EU countries, as well as to receive complaints in cases of systematic abuses. It also suggests the adequate training of officials based upon commonly established principles, in order to raise consciousness of the risk of discrimination. Further, it proposes written explanation in cases of visa denial, as soon as the decision is made, in language comprehensible to the applicant. The explanation should contain information on possibilities for withdrawal of the decision and on its reconsidering, as well as precept on possible complaint. Although the paper examines the examples of the EU countries, it is not difficult to recognise similarities in situations we face with when crossing the borders in nearest neighbourhood. Therefrom the potential solutions for the region of SEE cannot be very different from those mentioned above.
9. Some of the Experiences of the Former and Current EU Applicant Countries The process of the EU enlargement is very slow. As the countries that wished to join the European family changed, coordinating their legislations, economy, etc., so the EU, as a paneuropean organization, changed and learned extending its borders. Today's procedure for accession of the SEE countries to the European Union differs to a certain degree from the procedure and conditions that the countries of the Central and Eastern Europe had to fulfill before the accession. The president of the European Parliament Pat Cox has recently suggested that, after the possible accession of Bulgaria, Romania and Croatia to the EU in 2007, the process of its enlargement should temporarily be suspended. He estimated that after the accession of ten countries in 2004 and possible accession of Bulgaria, Romania and Croatia in 2007 the EU would probably need some time to stop this process in order to consolidate the enlargement that had already happened. It is necessary, therefore, to reach urgently the national consensus concerning this question, to avoid the possibility for Serbia and Montenegro to find itself in a postion of the "outsider", as it has happened to Turkey. (Turkey still faces the EU requirements to make radical changes if it intends even to be considered a potential candidate for membership.) The first step for the newly established union of Serbia and Montenegro is to be put on the "White List" of the EU, which can be achieved in three years, if taken seriously. The important question in this context is just the question of liberalisation of visa regimes of the applicant countries, having in mind the obligations taken over by the agreements on accession to the EU. As Serbia and Montenegro is, together with a few other countries in the region, on the very beginning of this long and hard way, we will review some of the processes which some of the applicant countries had to go through. Relying upon their experience, it is possible to predict and prevent repetition of the same mistakes and to overcome at least some of the obstacles that expect us on that way. The accession to the Schengen Agreement does not depend only on politics of candidate countries and of those of countries that signed the Stabilisation and Association Agreement, but also on willingness of the EU to enlarge the Schengen territory over the external borders of the Union. At the moment, the EU is not ready to enlarge the Schengen territory to the SEE countries for several reasons. First, the inclusion of some country to the Schengen territory implies the access to the confidential documentation of the SYS53, which the EU does not share even with the candidates that will accede to it next year. Further, the member countries find that it will take time to eradicate organised crime that still exists on the territory of SEE. Only when the organised crime rate in the region decreases, one of the preconditions for the accession to the Schengen Agreement will be met. The next precondition is to decrease a number of tourists who from the SEE countries enter the Schengen territory with tourist visas, and then find illegal jobs in the EU countries, apply for asylum without real reasons, or stay on the Schengen territory over the legal period. For all these reasons, the EU finds that the SEE countries in this moment do not meet the necessary conditions for accession to the Schengen Agreements, which means that it is not realistic to expect full freedom of movement before accession of the SEE countries to the EU. Even when the ten current applicant countries of the Middle and Eastern Europe become members of the EU on 2004, they will not become members of the Schengen Agreement at the same time. Up to the date of accession they will have to reach the high level of border controls, and the Council of Ministers will subsequently decide (independently, country
The Schengen Information System; see at www.ue.eu.int/ejn/data/vol_c/9_autres_textes/schengen/kap_18en.html
by country) upon lifting internal borders between the current Member States and the new members. It means that the full implementation of the Schengen Agreement to the countries that accede to the EU in 2004 will happen as late as, say, 2006.54 It has to be noted that, within their individual processes, every country in the region successfully progresses towards the European union, although by different speeds. Slovenia is at the very entrance, Macedonia and Croatia signed the Stabilization and Association Agreements with the European Union. Negotitatons with Slovenia are yet to be undertaken, as well as work on the feasibility studies for future stabilisation and association agreements with Bosnia and Herzegovina and Serbia and Montenegro. Being aware of the conditions that the EU has imposed for accession to the Schengen Agreement, the countries in the region have to balance between the obligations taken over by the conclusion of the Stabilisation and Association Agreement and relations to their neighbours. However, stabilization and association agreements themselves - unlike those prepared for the countries of Central and Eastern Europe - contain clauses on regional cooperation. It might be understood as a support to liberalisation/abolition of visa regimes among the SEE countries, but also as efforts towards strengthening border controls and towards economic strengthening of the countries, aiming at preventing uncontrolled migration to more prosperous countries. We can take the example of Hungary, when the significant influx of immigrants has been registered - mostly ethnic Hungarians - especially from Romania and Ukraine. This increase can be explained by the fact that Hungary will soon introduce visa regime, according to the EU requests, which is restrictive towards nationals of Ukraine and Romania.55 Such a trend of (il)legal migrations is expected just in the countries that will accede to the European Union. In these cases, visa regime did not function as a factor of prevention. Therefore, border control should be perceived as the priority. The SEE countries have taken various actions in this direction so far. So, Bulgaria and Romania 56, altohugh they are left out of the group of countries that will accede to the EU in 2004, managed to move from the Annex I to the Annex II, which means that their nationals do not have to apply for visas if they want to stay in the Schengen countries up to three months. The example of their coperation aiming at joining the process of the European integration - even before their movement to the Annex II - is the agreement on strengthening controls on common borders and on solving the problem of illegal Danube navigation concluded in 2000 by the ministries of foreing affairs of these two countries.57 Croatia has concluded bilateral agreements with Italy and Hungary so far, and it is expected that the same conclusion will be concluded with Slovenia, within arrangements for limitting the application of the Schengen Agreement for possesors of Croatian passports. Putting on the White List presupposes that a country is determined in its efforts towards stability in the fields of politics, economy and security in order to join the European integrations. It has been emphasised many times, so, that only united Serbia and Montenegro can accede to the EU.58 As a precondition for conclusion of the Stabilisation and Association
See more at www.mvp.hr and www.mei.hr See Trends in International Migration - Continuous Reporting System on Migration, Annual Report, 2002 Edition, OECD, 2003 and Migration Policies and EU Enlargement: The Case of Central and Eastern Europe, OECD, 2001. 56 See Chapter 4. 57 See Central European Review, Vol 2, No.23, June 2003, www.ce-review.org/00/23/romanianews23.html 58 A good analogy can be the example of Cyprus. The Greek authorities insisted that Cyprus coud accede to the EU only as an undivided state. In the opposite case, Greece threatened to use the right of veto on the accession of the
Agreement with the EU, Serbia and Montenegro has been required to fulfill its international obligations, to solve the problem of non-coordinated customs system, as well as the problem of an exceptionaly high crime rate, which is closely connected to the (potential) liberalisation of visa regime with the regional countries. There had also been criticism as regards to the parliament obstruction, that hindered adoption of numerous laws. Taking into account political tensions, difficult economic situation and the problem of Kosovo, Serbia and Montenegro has to make great efforts to prevent futher emigration. As a comparison, the process of accession to the EU in Hungary tok 14 years, while in Slovenia, the country without such difficult problems, it took almost 10 years.59 In this situation, the fact that in our country negotiations on these issues among parties have not even begun sounds absurd, not to mention reachinig national consensus on the accession to the EU. All the parties in Slovenia had signed the agreement on principles of accession and concluded this issue long ago. According to the research conducted by the Institute for Social Sciences late in 2002, orientation of the citizens of Serbia and Montenegro towards the EU membership is still high, even higher than in Poland or Slovenia. However, population's trust in the EU fell to 37%, comparing to 42% in October 2000, and the exceptionally high percentage of the population is still against the International Criminal Tribunal for the former Yugoslavia - 78%.60 On the other hand, the research conducted by the European Movement in Serbia shows that the citizens incline to the EU, but express conspicuous mistrust in the ICTY and another exceptionally important international institution NATO. It is interesting that, according to this, the citizens support acccession of Serbia and Montenegro to the EU and the privileges that follow from that membership (i.e. rights), but they show reserve and even dissapproval as regards the fulfilment of the international obligations (ICCY, NATO - in view of reforms in the army and security system).61 Tehrefore, Serbia and Montenegro has not only to prove the stability of its institutions and to improve ecenomic situation in the country, but also to take efforts to change mentality of its citizens in order to be considered the appropriate candidate for the EU. It has to be clear that destiny of the regional countries concerning accession to the EU is not determined only by the EU's rules on enlaregement, but also by the real efforts of all of us.62 Several examples that follow are the examples of the countries which are in the process of the accession to the EU and of those which are at the very start of that process. The purpose of this review is to gather information on the process through experiences of the other countries, so Serbia and Montenegro would learn what to expect, as well as to present possible solutions for the current situation of Serbia and Montenegro. There are the examples of good practice in bilateral relations (e.g. Hungary), which could be particularly useful as a "matrix" for liberalisation of visa regime towards the other countries in the region. Besides, there are the examples of the steps that should be taken if Serbia and Montenegro wants to be removed from the Black Schengen List, as well as how long is the way towards the full membership of the EU (the example of Slovenia).
other candidate countries to the EU. Cyprus has finally been "united", and its accession to the EU is expected in May 2004. 59 See the Chapter on Slovenia - Review of relations between Slovenia and the EU 60 See more on www.emins.org.yu, Bilten Evropa+, Proširenje Evropske unije: Pravac evropska tvrđava (The EU Enlargement: Towards the European Fortress). 61 EPUS Research, (mis)trust in International Institutions, see www.emins.org.yu (or Appendix 2). 62 See more on www.emins.org.yu, Bilten Evropa+, Proširenje Evropske unije: Pravac evropska tvrđava (The EU Enlargement: Towards the European Fortress).
10. Bosnia and Herzegovina
Bosnia and Herzegovina participates in the process of stabilisation and association. The final goal for this country, as well as for the other countries of South Eastern Europe, is to become a full member of the European Union. Bosnia and Herzegovina63 does not require visas for entering its territory from nationals of the following countries in the region: Croatia, Serbia and Montenegro, Macedonia and Slovenia, and for possessors of diplomatic passports from Romania. Citizens of the European Union are also exempt from visa requirements if entering Bosnia and Herzegovina. On the other hand, nationals of Bosnia and Herzegovina must have visas for entering almost every European country. If they want to enter the territory of Slovenia, the nationals of Bosnia and Herzegovina need visas, but the concession is made for those nationals of Bosnia and Herzegovina who possess Schengen visas or residence permit for the EU countries. In these cases, the nationals of Bosnia and Herzegovina are not required transit visas for the Republic of Slovenia. According to the Stabilisation and Association Report for Bosnia and Herzegovina made by the European Commission64, the interest of Bosnia and Herzegovina in regional stability reflects in permanent concentration on development of bilateral relatons in the region. The summit of heads of states of Bosnia and Herzegovina, Croatia and Serbia and Montenegro, held in Sarajevo in July 2002, was marked as an important step towards harmonisation of standpoints in the region. The summit was concluded by the common delcaration, acording to which the all parties agree upon full implementation of the Dayton Agreement; futher, they agree that they will keep unchangeableness of borders, they will insist upon return of refugees and that they will cooperate in issues of joining European integrations. The bilateral economic relations have kept improving. In accordance with the Memorandum of Understanding in regard to trade liberalisation within the Stability Pact for the SEE, Bosnia and Herzegovina is close to the end of negotiations of the majority of necessary bilateral agreements, and it has already concluded some of them. The agreement on free trade with Albania is about to be ratified. The relations with the Republic of Croatia develop slowly, but in the positive direction. In summer 2002 the agreement was concluded on initiative and protection of investments, as well as the agreement on commom border crossings, which enabled opening of the (problematic) border crossing in Hrvatska Kostajnica in August 2002. Further, the agreement was concluded upon cooperation in the fight against corruption, smuggling, drug abuse and organized crime, which resulted in improvement of cooperation. However, there is still an unsettled question of the port Ploče, and the part of the Croatian legislation - the field of property law which differs significantly from related provisions in the other regional countries - hindered the return of refugees and the implementation of property law provisions in Bosnia and Herzegovina. The relations with Serbia and Montenegro have also been improving, despite the fact that Bosnia and Herzegovina sued the former FRY for genocide before the International Court of Justice. Although the question of border demarcation has not been completely settled, there is a proposal of the agreement on borders.The political dialogue between Serbia and Montenegro and Bosnia and Herzegovina continues. The agrement on free
For information on visa regimes applied to citizens of Bosnia and Herzegovina, and the visa regime that Bosnia and Herzegovina applies to citizens of other countries, see www.mvp.gov.ba 64 See Commission Staff Working Paper, Bosnia and Herzegovina, Stabilisation and Association Report 2003, Brussels, March 2003 (www.europa.eu.int)
trade was enforced in June 2002. The agreement on dual citizenship was signed in October 2002. Although the air traffic between the two countries has been restored, there is still the problem with bad traffic connections and expensive services of carriers.65 The agreement on free trade with Former Yugoslav Republic of Macedonia, signed in April 2002, was enforced in July 2002. The relations with Slovenia are not yet on the satisfactory level, due to the dispute over the unpaid foreign currency saving in Ljubljana Banka for citizens of Bosnia and Herzegovina. The agreement on free trade was ratified in the Parliament of Bosnia and Herzegovina in July 2002. Slovenia is considered one of the biggest foreign investors in Bosnia and Herzegovina. The agreements on free trade were signed also with Turkey and Moldova, negotiations with Romania were concluded in December 2002, while those with Bulgaria are close to the end. It is up to Bosnia and Herzegovina to secure full implementation of the agreements on free trade in the region. The customs reform, supported on the international level, is under way. It is estimated that from 1996 to the present day a significant progress has been made. However, the problem is the existence of three customs (one for each entity, plus the District of Brčko), which seriously aggravates the efforts in creating the unique economic area of Bosnia and Herzegovina. Weak implementation of the existing regulations, insufficient cooperation among services within the entities and the interethnic conflict of interests have brought to the unacceptable number of intentionally wrong descriptions of goods with a view to classification in certain customs tariffs, lower or incorrect evaluation of goods in order to avoid paying the whole tax, designating goods as transit while it was, in fact, imported to the Bosnian and Herzegovinian market, illegally imported goods, etc. The losses caused this way are unacceptable. The efficiency of customs services would be significantly improved by introducing the unique customs direction on the state level. Such direction would eliminate conditions that support crime, reduce taxes, improve trade, create the unique economic territory of Bosnia and Herzegovina and bring Bosnia and Herzegovina in line with the EU practice. More precisely, changes in legislation will be necessary to unify the existing regulations to a unique customs system. The border control in Bosnia and Herzegovina has been improving gradually, although the problems are still evident. In October 2002 the Border Control of Bosnia and Herzegovina took over the control of all the border crossings in Bosnia and Herzegovina, except the Tuzla airport. The operativity has been increased by establishing the investigative unit, and formation of the unique information system and the system of radio communication has been planned. However, there are financial problems, although the basic costs of the Service are currenlty covered. There are 58 official border crossings at the moment, but the precise calculation showed that there are still 350 more point where the border could be crossed, legally or illegally. The border control is additionally reinforced by introducing new identity cards in December 2002, in line with the international standards, within the System for protection of identity of citizens. However, in the European Commission Report it has been pointed out to the obstacles in border control that have to be overcome: the question of safe and stable financing of the border service in Bosnia and Herzegovina, limited possibilities of supervising the so-called green and blue borders and the absence of readmission agreements with Serbia and Montenegro and Slovenia. Also, it is desirable to achieve border control in cooperation with neighbouring countries.
For example, a ticket for flight Belgrade-Sarajevo costs 180 USD, while a bus ticket for the same relation costs 10 USD
The new law on movement and residence of aliens and on asylum is in the process of preparation. The new federal criminal code was adopted and the federal court and federal public prosecution was established. It is expected that the establishment of new institutions and the adoption of new laws will help achieving the unique interpretation of the immigration legislation. However, it is necessary to improve coordination, to ensure more resources, to strenghten regional cooperation and to establish new institutions for acceptance of aliens. Bosnia and Herzegovina was held for the transit country for illegal immigrants heading for the Western Europe, as wel as for the country of destination for victims of human trafficking hailing from eastern countries. The information from the Border service of Bosnia and Herzegovina support the fact that Bosnia and Herzegovina has successfully been reducing the number of illegal crossings over its territory. Bosnia and Herzegovina has also been gradually bringing its visa regime into line with the EU requirements (although the nationals of Turkey, Serbia and Montenegro, Kuwait and Katar can still enter Bosnia and Herzegovina without visas). Visas are issued by the consulates of Bosnia and Herzegovina abroad, but it is unclear why the measures relating to issuing permits for entering the country are still very rigorous (one of the objections is (denied) access to a database of persons not to be permitted entry). The experts have also criticised the possibilities for visa applicants to "choose" a visa category they need, which makes visa regime liable to various abuses. It is up to Bosnia and Herzegovina to ensure the adequate coordination in implementation of the visa regime. The list of countries whose nationals are exempt from visa requirements must be brought into line with those made by the EU (i.e. countries from the Annex I and Annex II). Particularly brutal form of organised crime - trafficking in human beings for the purpose of exploitation - is still a problem, and sometimes those who should fight against it are themselves involved in criminal activities. Trafficking in human beings has not even been defined as a criminal activity in the legislation of the Federation, the Republic of Srpska and the District of Brčko. Although the Council of Ministers of Bosnia and Herzegovina adopted the Action Plan on Trafficking in Human Beings, the authorities still lack the political will and the adequate instruments for its implementation. A very few cases of trafficking in human beings have been successfully processed yet. It is expected from Bosnia and Herzegovina to implement the Action Plan and to protect victims, including the efficient protection of witnesses.
The Republic of Croatia has signed the Stabilisation and Association Agreement with the EU in 2002. Croatia made a great progress and showed that it was capable of further meeting the difficult conditions required for the accession to the EU.66 Citizens of the EU can enter Croatia without visas. There is no reciprocal visa requirement between Croatia and some SEE countries (Bosnia and Herzegovina and Bulgaria), as well as between Hungary and Croatia, and it has signed the agreement on abolition of visa regime with Slovenia.67 Only with Albania Croatia has the reciprocal visa regime, excluding the possessors of diplomatic passports (Albania and Serbia and Montenegro). The process of visa abolition is a bilateral process in which each side has to remove certain obstacles and fulfill certain conditions. On the Croatian side the obstacle is, inter alia, the fact that the nationals of some neighbouring countries need visas for the EU, and the Republic of Croatia has taken over the obligation, by the national programme for approaching the EU, to abstain from visa abolition for the nationals of those countries. On the other hand, as a proof of progress in developing mutual relations for establishing further cooperation, the Republic of Croatia applies temporary six-month visa-free regime from 10 June 2003 to the nationals of Serbia and Montenegro, as a respond to a similar movement of the authorities of Serbia and Montenegro. The question of visa regime between Croatia and Serbia and Montenegro worries the most Croatian refugees who live in Serbia and Montenegro and expect that the normalisation of relations could solve some of their existential problems. Every improvement in normalisation of relations between Serbia and Montenegro and the Republic of Croatia significantly contributes to improvement of conditions for return of property, therefore the principle of legal security. Apart from those who want to return their homes, there are also refugees who decided to stay in Serbia and Montenegro. They also find the solution of these problems significant for the (im)possibility of achieving their property rights. 68 The problem lies in legal regulation of rights of Croatian citizens who took refuge in Serbia and Montenegro during war conflicts in 1990s. The solution of these problems can be reached through the efforts that Croatia make to join the EU family. It was underlined in the European Commision Report on the of stabilisation and association process in Croatia, published in April 2002. The Report stressed the improtance of meeting the political criteria, whose fulfillment determines the evaluation of the whole process. Three main political conditions refer to the strenghtening of democracy and the rule of law, respect of human rights and minority protection, as well as the regional cooperation. The priorities that should be settled
See more on www.ijf.hr, www.mei.hr and www.mvp.hr See on www.mvp.hr 68 The return of Serbs to the Republic of Croatia and the question of the right of occupancy is connected to the negotiations on succession. The negotiations on this issue has been conducted several times on the highest state level, but the other negotiations on this has also been continuing. The Croatian Foreign Minister sressed several times that the right of occupancy and property are not the same thing, and that, in view of this, "the standpoint of the Croatian Government is clear", and that the particular measures in the areas of a special state protection enable returnees to settle their housing problems in adequate ways. The Croatian president Stjepan Mesić repeated in May 2003 that Serbian refugees cannot be returned the right of occupancy in Croatia, but that they should be given housing, i.e. the possibility of legal residence. He added that Croatia had abolished social property long ago in order to establish market economy, and that it could not re-establish it to return the right of occupancy, which is "a derivative of social property" and stressed that there were no disagreements between him and the Croatian government concerning this issue. (See more on www.b92.net)
in a period of 12 months after the publication of the Report include, inter alia, full respect of human rights, including the passing of the constitutional law on minority protection, strenghtening regional coperation and the accelerated return of property to refugees (point 3.1, page 14 of the Report).69 However, a difficult problem in Croatia is the long-time legal gap caused by the absence of a regulation that would determine the responsibility of the state in the case of damage. Namely, after a number of Serbs whose houses had been ruined decided to sue the Republic of Croatia70, the Article 180 of the Croatian law on obligational relations 71 was abolished and a new regulation was passed instead of it, so the procedures before the national courts were stopped. Croatia today is the subject of growing international pressures for this, especially for the great number of legal actions of Croatian citizens against the state before the European Court of Human Rights. The postponement of passing these laws significantly increases the dimension of damages that the state should pay for, burdening tax payers this way. What is disputable, allegedly, is the fact that Croatia does not have money to pay a great number of damages, and it has been carefully considering the quantities that ought to be payed, as well as resources and the time frame.72 However, in the decision of the European Court for Human Rights from March 2002 relating to one of such cases it was said that it would be futile if a legal system of the contracting country would enable a person to submit a civil action before the court giving no guarantees that the case would be solved by pronouncing a final decision in a procedure.73 According to the Stabilisation and Association Report for Croatia made by the European Commission74 (further: the Report), the relation of the current authorities to the regional cooperation is much more constructive of those of the previous regime. However, Croatia protests for the fact that its destiny and political future might depend on the development stage in the region, regardless its own progress. This objection could be noticed in permanent criticism of European policy relating to the necessity of cooperation in the region of SEE. Numerous objections have also been directed to the clause on regional cooperation in the Stabilisation and Association Agreement, although the attutude of the EU was clear: regional cooperation among the signatory countries is the main instrument which enables stablisation in the region and presents the basic principle of the accession to the EU, but the progress of each country will be assessed individually, meaning that none of them will not follow potentially different destiny of the others. As regards to the bilateral relations, the Report estimates that the significant progress has been made, but that there are also certain obstacles. Croatia and Bosnia and Herzegovina are in the porocess of negotiations aiming at concluding an agreement on dual citizenship. The Agreement on free trade with Bosnia and Herzegovina was concluded and it has been
See more on www.ijf.hr See more on www.vecernji-list.hr/2002/11/25/Pages/hrvatskoj.html 71 The former SFRY had included this article into the Obligational Relations Law after the unrest in Kosovo. According to it, a social-political community was considered responsible for death, physical injury or damaging or destuction of property of natural persons caused by acts of violence or terror during public demonstrations or manifestations. It was supposed that the organs of the social-political community, in accordance with regulations in force, were obliged to prevent damages. 72 See on www.hrt.hr/vijesti/arhiv/2003/01/30/SAB.html 73 See the case Kutić protiv Hrvatske (Kutić against Croatia) (ECHR, Application no.48778/99) www.coe.int 74 See Commission Staff Working paper, Croatia, Stabilisation and Association Report 2002, Brussels, April 2002 (www.europa.eu.int)
implemented since January 2001.The agreement on return, aiming at accelerating sustainable return, has been concluded in December 2001. However, there are still many unsettled problems, such as the relations with the Republic of Srpska, which are still emotionally burdened. The agreement on state borders, signed in 1999, which has been only partly implemented, is still not ratified in neither of the countries, and the questions related to definitions and respect of borders pop up every now and then. However, since a mixed diplomatic working body has begun to function, ratifications could be expected soon. At the end of 2001 the negotiations were initiated with a view of concluding the Annex of this Agreement, which would establish the principles for precise definitions of border lines, as well as terms for finishing necessary documents that would become its consitutive part. According to the Croatian Ministry of Foreign Affairs, the Agreement will be send to ratification after the Annex and the planned documents are added, for only than could it solve the border problem with Bosnia and Herzegovina. In April 2001 Croatia and Bosnia and Herzegovina signed the Contract on establishment of border crossings. The two countries establish all the borders by agreement, and on several crossings customs services work on the same locations, be it on the territory of Republic of Croatia or Bosnia and Herzegovina, which was arranged by the Contract on using common locations on border crossings, signed in June 2002. Upon this contract and its annex, a border crossing was opened on the common location in Hrvatska Kostajnica. Annexes that will enable opening border crossings on the common locations Metković-Doljani, KlekNeum I and Zaton Doli-Neum II are in the process of preparation. During 2002 the Draft of the Contract on border traffic and cooperation was initialled. Its aim is to improve cooperation and to create the best possible conditions for unhindered movement of people and goods on border crossings. The bilateral relations between Croatia and Serbia and Montenegro have been intensified after mutual recognition and establishment of diplomatic relations. The stress is put on establishment and improvement of economic relations. Since the mutual recognition, the Republic of Craotia and Serbia and Montenegro have signed twenty six intergovernmental agreements from different fields, and some ten more are still in the process of negotiations. In June 2002 Serbia and Montenegro has liberalised the visa regime introducing the regime of tourist permits for the citizen of the Republic of Croatia. At the same time, the Croatian government made the decision on further simplification and faster procedure of visa issuing for the citizens of Serbia and Montenegro, and it has suspended visa regime for the period of summer 2003. The UN Security Council has adopted in 2002 the resolution 1437 by which the mandate of UNMOP was ended. Both sides agreed that before precise identification of the southern border and before establishing maritime border a temporary regime should be established. The protocol on temporary regime related to the southern border has been signed in 2002, when the transfer of objects in Prevlaka was carried out. In April 2002, in Belgrade, the three documents have been signed: the Agreement on Cooperation in Culture and Education, the Protocole on Principles for Identification of Borders and Preparation of the State Borders Agreement, as well as the Readmission Agreement. Later, at the meeting in Zagreb, it was agreed that, as regards the question of northern border between the two states, the current bilateral Border Traffic Agreement should be fully applied. It is important to mention economic relations which have been intensified in 2000, when the increase of export from Croatia to Serbia and Montenegro of 656% was registered. The signing of the Free Trade Agreement in 2002 in Belgrade aimed at additional support to economic cooperation and at further increase of exchange of goods. It is interesting that, according to the statistics from October 2002, in the
period of 9 months railroad traffic was increased for 34%, and 30% more passengers were transported than in the whole 2001. It goes without saying that the complete abolition of visa regime would be of a great improtance for development of international trade and transport (a particular problem is the provision of Croatian transit visa required from the citizens of Serbia and Montenegro if they travel by train/car to Slovenia or farther75). Further, Croatia has concluded the agreement on free trade with Hungary in 2001 (the first agreement of this kind outside the countries of former SFRY). The common declaration on cross-border cooperation between the governments of Republic of Hungary and the Republic of Croatia has also been signed in 2001. The declaration institutionalise cross-border cooperation and and enables applications for means from the EU funds for already arranged projects of cross-border cooperation in the field of economy, environment protection and education in border areas. The Agreement between Croatia and Hungary on protection of Hungarian minority in Croatia and Croatian minority in Hungary from March 1995 has settled the question of minority protection in another country. Furthermore, the Republic of Hungary, as one of the applicants for the first circle of the EU enlargement, supports the Croatian accession to the European integrations. Soon after signing of the Stabilisation and Association Agreement, the Croatian Ministry of Economic Integrations started consultations with the Hungarian institutions authorised for the EU issues in order to learn from their experience about organisation of competent services and writing fundamental documents for beginning negotiations with the EU. Bilateral relations between Croatia and Slovenia are also intensive. A few unsettled questions inherited from the times of the common state have not been an obstacle for development of good relations and cooperation in previous years, except in August 2002, when the relations were somewhat worsened due to a series of incidents in the area of delineation between the territorial seas. However, they soon agreed upon a temporary regime of fishing in the border area at sea. The agreement on border traffic and cooperation has been successfully implemented. The permanent mixed committee for its application defined the usage of border documents and arranged the opening of 6 more border crossings till the end of 2002. It was confirmed that from 2004 crossing the state borders will be possible with adequate border documents only. The ministers of foreign affairs of Republic of Croatia and the Republic of Slovenia signed in 2002 the agreement on cross-border police cooperation which, inter alia, determines the way and form of police cooperation in supervision of the common state border and introduced mixed police patrols, in order to improve security on the Slovenian-Croatian border. It has been negotiating over a series of questions related to definitions of the so-called border regime - over the contract of road border crossings, building common border crossings, simplification of border control on road and railroad border crossings and similar, which in fact introduces the Schengen system on the Croatian-Slovenian border. The agreement on common state border was initialled in 2001, but the coalition in power in Croatia has not reached the consensus for signing the agreement. Public opinion was also against the agreement. It became obvious that it was not possible to continue the process of acceptance of the proposed solutions. All this resulted in tension and incidents in the areas of delineation of territorial seas. With regard to visa regime that Croatia has towards its neighbours, the Report underlines that the effort was made in harmonisation with the Schengen provisions. The list of the countries whose nationals need visas to enter the Republic of Croatia mostly corresponds to the list of the
Slovenia and Bosnia and Herzegovina regulated that the citizens of Bosnia and Herzegovina who possess Schengen visas or have residence permit in the EU countries need not transit visas for Slovenia. It would be diesirable to consider such or similar solution of this problem between Serbia and Montenegro and Croatia.
EU, excluding the fact that nationals of some of the countries from the Annex II - Bosnia and Herzegovina, Former Yugoslav Republic of Macedonia, Jamaica and Turkey - can still enter Croatia. However, there is still a problem with border demarcation with some of the neighbours, such as Slovenia, with whom the so-called green and blue borders have not yet been arranged. The agreement on borders with Bosnia and Herzegovina from 1999, although formally applicable, has not been ratified yet. The questions of demarcation with Serbia and Montenegro are settled (the question of Prevlaka). With regard to border control, parallel with strenghtening border control by the Slovenian side with a view of introducing Schengen standards, the Croatian police introduced more strict supervision of border area with Bosnia and Herzegovina, especially in the area of Bihać. The number of motorised and helicopter teams for patrolling in forest areas has been doubled, and the customs officers apply strict control measures on regular border crossings. Despite all these measures, in the first 9 months in 2001, 17.038 illegal border crossings were registered, which presents a slight improvement in comparison with the previous year. According to the information from 2001, illegal migrants were mostly Romanians (44%), then Albanians hailing from the territory of Serbia and Montenegro (14%) and finally Turks (12%). Iraque, Former Yugoslav Republic of Macedonia, Moldova and Bosnia and Herzegovina are still the countries of origin of illegal migrants. It can be concluded that border control must be strenghtened further, both with human resources and with technical equipment. The Report stressed inadequaces in the existing provisions relating to the nationals of the third countries who apply for asylum in Croatia. The main problem in the existing provisions is the absence of established procedures for assessment of submitted requests, as well as procedures towards people who apply for asylum at the border. Border services must be given clear instructions in order to ensure the transparency of procedure and respect of the principle of non-refoulment.76 The common declaration relating to the close regional and bilateral cooperation in the fight against illegal migrations and organised crime, as well as to joint harmonisation of preventive strategies and strategies of implementation of measures, was signed in Slovenia by the ministers of foreign affairs of Croatia, Slovenia, Italy, Austria and Hungary. The ministers defined, inter alia, the common visa policy, which is brought in line with the Schengen provisions towards the countries of illegal migrants. The important result of signing this declaration is the fact the Croatian police will form mixed patrols with the colleagues from the other side of the border and improve information exchange with these services. Croatia concluded a series of readmission agreements, and it was advices to continue the efforts.
The principle of non-refoulment is a common norm of international law and it obliges all the countries. This principle was established by numerous international agreements, among others in the Convention against torture and other forms of cruel, inhumane and humiliating behaviour and punishment (Article 3, point 1). The principle relates to the prohibition of coercive return of individuals to the territory in which it is certain that their human rights would be seriously violated, in the sense that there is a serious threat of torture, missing, extra-judicial punishment or death penalty.
Signing the Stabilisation and Association Agreement in April is the significant step in efforts of the Federal Yugoslav Republic of Macedonia77 to approach the EU. However, the only real indicator of the progress will be careful and full application of the obligations. At the moment, Macedonia and Croatia are the only SEE countries that concluded the Stabilisation and Association Agreement with the EU. The political and economic relatinos with the neighboring countries are on the satisfactory level. Macedonia has concluded the agreements on free trade with Slovenia (July 1996), Serbia and Montenegro (October 1996), Croatia (May 1997), Turkey (September 1999), Bulgaria (October 1999), Ukraine (2000), Albania (2002) and Bosnia and Herzegovina. In June 2001, under the aegis of the Stability pact for South East Europe, Macedonia has signed the Memorandum on Understanding with Albania, Bosnia and Herzegovina, Bulgaria, Croatia, Romania and Serbia and Montenegro aiming at liberalisation of trade and reducing customs rates. The major part of public opinion is still suspicious of closer connections with Bulgaria and Greece, although they could be a good instrument for strenghtening regional cooperation. Greece and Macedonia have very good economic relations and they succeeded in solving a great number of their disagreements, but some of them are still the problem (e.g. the dispute over the name of the country). The Stabilisation and Association Report for Macedonia made by the European Commission78 assessed the relations between Macedonia and Croatia as very good. Bilateral relations with Albania were jeopardized during the conflicts in Macedonia, but the dispute was settled, inter alia, through the dialogue between Skoplje and Tirana. The relations improved after concluding the free trade agreement, and there is also a need for cooperation in improvement of police control on the common border, as well as in the fight against illegal traffic in weapons, drugs and human beings. There are close cultural, political and economic relations with Serbia and Montenegro. Both countries have signed and ratified the agreement which solved the problem of a demarcation line on the common border. In spite of closing the border with Kosovo in 2001, the reconstruction of the border crossing Blace has begun. According to the Report of the European Commission mentioned above, Macedonia has not harmonised its visa regime with the EU provisions (introducing visas for the countries which are on the so-called Schengen Black List, i.e. the Annex I). It means that Macedonia still does not request visas for entering its territory from the nationals of the former Soviet republics, Serbia and Montenegro and Turkey. As regards issuing the Schengen visas, Macedonian nationals go through the similar (difficult) procedure as the nationals of the neighbouring countries.79 The border control is one of the biggest problems in the country. There are some
See more on www.mnr.gov.mk See Commission Staff Working Paper, Former Yugoslav Republic of Macedonia, Stabilisation and Association Report 2002, Brussels, April 2002 (www.europa.eu.int) 79 The procedures slightly differ from country to country. Some of the EU Member States which have diplomatic posts in Skoplje issue visas there, while the other countries, which do not have consulates in Macedonian capital, use consular offices of the other EU countries. A very interesting example of complicated procedures for visa issuing dates from 2000: Macedonians who travelled to Spain and Portugal had to apply for Schengen visas in French embassy, those who travelled to Benelux countries had to do it in German embassy, etc. The example of travellers to Ireland is especially striking. Namely, in order to go to Ireland
parts of the border, mostly those with Kosovo and Albania, where the control is almost completely absent, except on regular border crossings. The Ministry of the Interior is authorised for control of regular border crossings, while the so-called green border is under jurisdiction of the Ministry of Defense (army). After the enforcement of the Stabilisation and Association Agreement, Macedonia will be obliged to accept all its citizens who will be returned from the terrotory of the EU in case they resided there illegally.
through London, Macedonian travellers first had to get the British visa, for which they were directed to Belgrade to the British office, temporarily placed in the Embassy of Brasil. However, Irish visas were issued in the Irish Embassy in Austria, which meant that the applicant would have to go to Wiena to apply for Irish visa, meaning, further, that he/she should have the Austrian visa, which, fortunatelly, could be obtained in Skoplje. Eventually, the officers on the Irish border have right to deny entering the country, without explanation. (See Is Macedonia really closer to Europe? February 2000, www.aimpress.org). The numerous obstacles of this kind still exist in almost all countries of SEE.
Slovenia is among the Central European countries, but, taking into account that it is a successor of the former common state together with several SEE countries, it is important to describe its experience of approaching to the EU for the sake of comparison. Here folllows the short review of the development of relations between Slovenia and the EU80: 13 April 1992 - Establishing diplomatic relations with the European Community 5 April 1993 - Signing the agreement on cooperation between the Republic of Slovenia and the European Economic Community, then the agreement between the EEC and the Republic of Slovenia in the field of transport, as well as the Protocole on financial cooperation 10 June 1996 - Signing the European Association Agreement 10 June 1996 - Slovenia applies for the full membership of the EU, in accordance with the provisions of the Treaty establishing the European Union 15 July 1996 - The National Assembly of the Republic of Slovenia ratified the Association Agreement; the Slovenian Constitution had been changed by the amendment, in accordance with the Decision of the National Assembly on relations with the EU, Italy and NATO made on 11 April 1996 (in the point 2 of the Decision it was said that the main objective of the Republic of Slovenia was to become a full member of the EU by 2001) 1 January 1997 - Coming into force the provisional agreement on trade and issues related to the trade between the Republic of Slovenia and the EU 12 December 1997 - The European Council in Luxembourg adopted the decision to start negotiations 31 March 1998 - The formal beginning of the negotiations on full membership 1 February 1999 - Coming into force the Association Agreement, after it had been ratified by the European Parliament and all the EU member states 13 December 2002 - The European Council in Copenhagen concluded negotiations with Slovenia and the other nine candidate countries May 2004 - The acceptance of all ten applicant countries into the full membership is expected If we compare the tempo of accession of Slovenia, which had not faced the consequences of disintegration of the state, conflicts and sanctions, the great number of refugees and other problems, with the tempo of the neighbouring countries, it is necessary to be a real optimist to expect the accession of the SEE countries into the EU in 2008. Serbia and Montenegro offered Slovenia visa-free regime in 2001, but Slovenia could not accept it for its obligations to the EU.81 Slovenia is among the countries which will be accepted to the full membership of this organisation and it is, therefore, obliged to apply the provisions of the Schengen Agreement to the third countries. Although the nationals of Bosnia and Herzegovina are required visas to enter Slovenia, the concession was made for those who possess the Schengen visas or approved residence in the EU countries - so they need not have transit visas for the Republic of Slovenia. Such practice has also been applied to the nationals of Serbia and Montenegro since June 2003. However, there are cases in practice that the nationals of some SEE countries have problems when
See more on www.gov.si See www.b92.net, The problem of air traffic and visas for Slovenia is to be solved, September 2001
entering Slovenia, although their countries belong to the Annex II, i.e. the group of countries that do not need visas to enter the Slovenian territory.82
See www.mirovni-institut.si, Protest to the Slovenian Authorities - Warning on the unacceptable policy and practice regarding the visa regime and the treatment of citizens of certain SEE countries on the Slovenian border (December 2001)
14. Hungary Like Slovenia, Hungary83 belongs to the group of countries of the Central Eastern Europe. The accession to the European Union as its most improtant international political goal Hungary has defined as early as 14 years ago. After the first free elections in 1990 the Hungarian Parliament adopted a document on international political goals and the consensus on these questions lasts 13 years already. In 1994 Hungary applied for accession to the European Union. It was the beginning of the negotiations that lasted almost 10 years. Firstly, it signed the Stabilisation and Association Agreement, and then came the phasis of difficult negotiations. What remained in the end are just the questions that have always been the most difficult and the riskiest: finances, agrarian issues and the flow of labour force in the Union. The negotiations officially ended last year, and on 12 April 2003 the referendum was held on which 84% voted for accession of Hungary to the European Union. From 1991 to 2000 - for almost 10 years - the relations between Hungary and Serbia and Montenegro were at a very low level. In this period almost none of the agreements were signed, and those who had been signed earlier need to be modernised, because some bilateral agreements that had been signed would not be valid when Serbia and Montenegro and Hungary become the full members of the EU. For example, the agreement on free trade signed in 2002 will not be valid after the Hungarian full membership in the EU, but it will be replaced by the agreement that Serbia and Montenegro signs with the European Union within the Stabilisation and Association Agreement. As Hungary does not want to stay an external border of the EU for a long time, it is willing to make efforts to help all its neighbours interested in the full membership of the European Union. Hungary belongs to a group of CEE countries which met the conditions and will be accepted to the full membership of the European Union. It is neccessary to introduce visas for Serbia and Montenegro, because Serbia and Montenegro is currently on the list of countries that need visa to enter the territory of the EU. In accordance with this, the introduction of the visa regime is expected in November 2003. Serbia and Montenegro has found itself on the list of "privileged" countries in the region this way, for the introduction of the visa regime has been postponed till the last moment, while for Macedonia and Bosnia and Herzegovina, for example, it was introduced as early as 2001. It is expected that this new moment84 in the relations between two countries would bring many changes, having in mind that there has never been a visa regime between Serbia and Montenegro and Hungary. With a view to alleviating the effects of the "Schengen wall" on the nationals of Serbia and Montenegro, but also to protecting ethnic Hungarians who are nationals of the Serbia and Montenegro, certain measures has already been taken. 85 One of the movements in this direction
See more on www.mfa.gov.hu The candidate countries are obliged to 85 Some other applicant countries also consider introducing or regulating the preferential relations with their national communities living in neighbouring countries. Namely, there is a precise list of special passports by the Schengen (see The Common Manual and the Common Consular Instruction), whose possessors have access to the country that issued the passports and transit access to the Schengen countries without visas. As an example of regulating the question of its national minorities in neighbouring countries here could be mentioned Greek "identity card for aliens" (green), which the Greek authorities issue to the nationals of the third countries who are ethnic Greeks, and the "special identity card for persons of Greek origin" (cream), issued to the nationals of Albania of the Greek origin, valid for 3 years. The cream card is issued also to spouses and descendants of the ethnic
was the opening of Hungarian Consulate in Subotica in 2001, in order to help visa issuing in future.86 Furthermore, the web site of the Consulate has been opened, through which, besides the general information, the citizens could get the necessary forms for Hungarian visa applications, so the citizens who live far from Belgrade and Subotica could easily get the information about the Hungarian visa and the neccessary documents for visa applications.87 Besides, signing of the bilateral agreement on protection of national minorities between Hungary and Serbia and Montenegro is planned.88 However, it was said that there is a possiblity of issuing Hungarian national visas - not the Schengen visas - so the nationals of Serbia and Montenegro could travel with them only to Hungary. According to the Brussels provisions it is possible, for in the Schengen regime there are national visas relating to two countries only.89 Such a solution would require stricter control of borders, but it still would be a privilege.90 It was said in talks of the authorities that the nationals of Serbia and Montenegro would have to possess visas only for a short, transitional period, for Hungary would plead for putting Serbia and Montenegro to the White Schengen List91 as soon as possible, but it also expects efforts and actions of the authorities in Serbia and Montenegro concerning this issue. During 2003 the Hungarian government showed once more its willingness to ensure privileges for nationals of Serbia and Montenegro after it takes over the obligation to introduce the visa regime towars its southern neighbour, as a part of the preparation of the accession to the European Union. It has been anticipated that Hungary will do its best for the nationals of Serbia and Montenegro - especially for Hungarians from Vojvodina - not to deter them from travelling and from maintainig communication of the representatives of civil, official and busines sphere. This relates to all the privileges that the Schengen regime concedes to Hungary in the agreement with Serbia and Montenegro, which means that Hungary wil be able to issue visas for longer terms with multiple entries, free visas or visas with lower tariffs that will relate to some special categories of the population.92 It has also been anticipated that the nationals of Serbia and Montenegro will be exempt from visas for business trips, that the amount of visa taxes will be moderate, there will be visas for the longest period possible, then visas for multiple entries and residence, tax exemption or their reduction for paritcipants in artistic, scientific and cultural cooperation and for supporting youth tourism and exchange of students through costs reduction.
Greeks, regardless their nationality, if there are some kind of official documentation through which family relations could be proved. 86 In the opposite case, the Hungarians from Vojvodina would have to go to the Hungarian Consulate in Belgrade to apply for visas. 87 See www.b92.net, Forms for Hungarian visas on the internet, March 2003 88 See www.b92.net, the interview with Jozsef Pandur, the ambassador of Hugary in Serbia and Montenegro, April 2003 89 The institution of the so-called LTV (Limited Territorial Validity) visas enable a country to allow entrance to its territory to persons who do not meet the criteria for tje Schengen visas if it finds their presence particularly improtant, for humanitarian or political reasons. In this case, however, these persons do not have right to enter some other Schengen country. National visas (NV) are issued for a period longer than 3 months, but with the same territorial limitation. Regulation of conditions for obtaining such visas is the sovereign right of a country in question. 90 See www.b92.net, National visas, March 2003 91 See www.b92.net, Pandur: Visas for Hungary not before July 2003. November 2003 92 In the Law on administrative taxes of the Republic of Croatia there is a provision by which the inhabitants of the border area of weaker social status are exempt from taxes for border permits if they submit the adequate papers (the Legal fees act of the Republic of Croatia, Article 6)
The final list of privileges for the nationals of Serbia and Montenegro will be known after signing the agreement on introducing the visa regime.93 Hungary expresses the hope that Serbia and Montenegro, in return, will enable maximum privileges for Hungarian nationals, e.g. visa exemption in summer period.94 Despite the visa regime that will influence movement across the border between Serbia and Montenegro and Hungary and make the connection of ethnic Hungarians from Serbia and Montenegro with the country of origin more difficult, it has been estimated that the accession of Hungary to the EU is of the great importance, because the mother country will be more able to help Hungarian communities living outside its borders. In the meantime, Hungarians from Vojvodina have estimated that the dual citizenship would be the best solution for them.95 The visa regime with Hungary will exist as long as Serbia and Montenegro becomes the full member of the EU.
See www.b92.net, Hungary introduces visas till 1 November, March 2003 See www.b92.net, Hungarian visas with maximum privileges, March 2003 95 See www.b92.net, It will be difficult in the beginning, April 2003
15. Bulgaria During the Helsinki Summit the European Union formally invited Bulgaria96 to join the negotiations on accession. The invitation was received as an important step towards consolidation of the relations with the EU and as a signal for alleviating the frustrating visa procedure for travelling to the EU. However, the expected liberalisation did not happen immediately, which resulted in Bulgarian threats to withdraw its participation in the Stability Pact for the SEE. On the same occasion, Bulgarian Minister for Economy and the Deputy Prime Minister threatened that Bulgaria would reintroduce the abolished visa regime to the citizens of the EU (!) if the Bulgarian nationals were not allowed travelling to the Western European countries without visas. It had been even considered freezing the agreement concluded with the EU about closing the nuclear power station in Kozloduj.97 One of the arguments was that the EU did not liberalised the visa regime to Bulgaria, although it signed the Stabilisation and Association Agreement, while it was alleviated for some other countries, which even did not concluded that agreement (e.g. Croatia). The EU finally consented to consider the request, and, consequently, the Ministers of Justice and the Interior of the EU began to work on a sort of a questionaire with a view to estimating whether Bulgaria (Romania was also included in this process) met the conditions for liberalisation of visa regime. It was planned that the criterium for evaluation of Bulgaria and Romania sholud be their success in border control, i.e. the level of harmonisation of their regulations and practice with the EU standards. It was decided that each country would be evaluated separately and the decision would be made for each of them separately.98 After the detailed consideration, the EU Council of Ministers of Justice and the Interior concluded that the visa regime should be alleviated, but supervisory mechanisms should be established previously to find out whether Bulgaria and Romania could become the potential gate through which floods of illegal migrants from the third countries might come to the EU. It had also been discussed about a compromise solution, according to which both countries would be removed from the Schengen Black List, but they would still need visas for travelling to the EU countries. However, taking into account that Bulgaria has made a significant progress in harmonisation with the EU criteria from Maastricht since December 199999, it was moved from the Annex I to the Annex II, while the Romanian case was reconsidered. At presents, neither of them is on the Black List of the Schengen Agreement. In its Opinion from 1997, the European Commission estimated that Bulgaria have met all the political conditions. Since then, Bulgaria has not slowed down the progress, for it continues with its efforts for the full respect of the criteria from Copenhagen. If we consider the situation in general, as well as the planned date of accession to the European Union (2008), we can conclude that Bulgaria has made a reasonable level of its harmonisation with the EU aquis in many fields.100 However, it is necessary to pay more
See www.mfa.government.bg See more The Schengen Curtain: Blacklist or Blackmail? Central Europe Review, November 2000 (www.cereview.org) 98 See more EU: Romania, Bulgaria Call For End To Visa Restrictions, February 2000, (www.rferl.org) 99 One can note the stable economic growth, progress in democratic process, success in strenghtening border controls. Further, new passports and identity cards has been produced (more difficult to forge), the readmission agreements have been concluded with all EU countries. 100 See Towards the enlarged Union: Strategy Paper and Report of the European Commission on the progress towards acession byeach of the candidate countries, Brussels, October 2002 (www.europa.eu.int)
attention to the application and enforcement of the law. Also, the progress in the work of public administration and the reform in the field of justice must be sustainable. The fight against corruption develops successfully, although it is necessary to take additional efforts to complete it. Bulgaria successfully guarantees and protects human rights and freedoms. The regulations of the fight against trafficking in human beings, corruption and organised crime have been improved, as well as the regulations of asylum. Bulgaria has also adopted the Action Plan for adopting the Schengen requests.
16. Romania Like Bulgaria, Romania101 was invited during the Helsinki Summit by the European Union to start negotiations on accession. However, similarly as with Bulgaria, the visa regime to Romania had not been alleviated. Like in Bulgarian case, it was made a questionaire in order to estimate whether Romania met the conditions for liberalisation of visa regime, i.e. to estimate the level of harmonisation with the EU standards of regulation and practice of border control. It was decided that each country would be evaluated separately and the decision would be made for each of them separately.102 After the detailed consideration, the EU Council of Ministers of Justice and the Interior concluded that the visa regime should be alleviated, but supervisory mechanisms should be established previously to find out whether Bulgaria and Romania could become the potential gate throuh which floods of illegal migrants from the third countries might come to the EU. However, while Bulgaria made a significant progress in bringing into line with the EU criteria from Maastricht103, Romania found itself at the very end of the line of the EU candidate countries. Among other things, the problem was the fact that the nationals of Iraq and Iran could enter the country without visas, as well as the fact that the Romanian authorities refused to accept back their own nationals who had been deported from Germany as illegal residents. However, the main objection was those about the porosity of the eastern Romanian border with Moldova, having in mind that the nationals of Moldova could enter Romania with identity cards only at that time. It had also been objected to Romania that its passports were easy to forge, so the measures were taken to make new passports, in accordance with the EU standards. The EU estimates that Romania has made a significant progress in visa policy up to the present. Currently, Romanian visa is required from the nationals of 156 countries. In April 2001 Romania amended the Alians Act, which now regulates the procedure of visa issuing - visas must be obtained from a Romanian consulate or embassy, and only exceptionally at the Romanian border. The national visa centre receives all visa applications and takes final decisions. The Aliens Directorate carries out additional checks on applications from countries with high levels of migration. The progress has been made concerning border control. Two emergency ordinances were adopted in June 2001 - the first on Romanian borders, and the second on the organisation and functioning of the border police (it provides for a new structure and a framework for cooperation between the border police and other bodies). However, further efforts are needed to bring Romania in line with the Schengen acquis. In the area of immigration policy, Romania has concluded a number of readmission agreements with the Member States (with the exception of the United Kingdom and Portugal) and with certain applicant countries (Poland, Slovakia, Czech Republic, Slovenia). The amended Aliens Act contains, inter alia, provisions on entry and residence and rules governing expulsion. An agreement has also been signed with the International Organization for Migrations to set up a temporary refuge for female victims of trafficking in human beings.
See www.mae.ro See more EU: Romania, Bulgaria Call For End To Visa Restrictions, February 2000, (www.rferl.org) 103 One can note the stable economic growth, progress in democratic process, success in strenghtening border controls. Further, new passports and identity cards were produced (more difficult to forge), the readmission agreements were concluded with all EU countries.
Therefore, Romania was "conditionally" put on the Schengen White List. It has been underlined in the EU that this decision will come to force when certain conditions are met. The European Commission requested from Romania to report to it about its plans concerning illegal immigration and its citizens who illegally reside in the countries of the Schengen agreement, including the answer to the repatriation of those persons, who would report to the European Council about that. This practically means that Romania will be put onto the White List (by decision of the European Council, on the proposal of the European Commission) if the "undoubtful progress" is made as regards the problems of illegal migrants, visa regime and border control. Witnessing this progress, the European Commission recommended to the European Council to exempt Romania - starting from January 2002 - from the list of countries whose nationals must have visas to enter the Schengen territory.104 From the political point of view, it was a great encouragement to the Romanian state. Such movement of the EU would certainly encourage the other countries in the region as well to go through the same process and fulfil such and similar conditions, and, consequently, to be removed from the Black List. Romania was the last among the applicant countries whose nationals needed visas for travelling to the EU Member States.105 To achieve this goal, Romania had to harmonise its laws with the provisions of the EU. Although in one of the previous reports the European Commission said that Romania would not be among 10 applicant countries that would accede the EU in 2004, it gave its credit to it for the goals achieved. The Romanian government had a significant role in abolition of the restrictive visa regime, through its efficient and quick reaction to a scandal that broke out in Czech Republic in the middle of 2001 relating to the Romanian illegal emigrants. The Czech government protested when it was discovered that a certain number of Romanian applicants for political asylum, mostly Romanies, entered the Czech territory in the previous year. They had abused the liberal Czech Asylum Act, which allowed applicants for asylum to spend three months in the country, for state's account, while their applications were processed. Abusing such a liberal asylum policy, thousands of Romanian Romanies hastened towards the Czech Republic, mostly through certain tourist agencies. They applied for asylum as soon as they had got there, and then spent three months with food, accomodation and allowances provided by the state, doing nothing or being involved into petty crime. The Romanian government urgently took certain measures in the fight against this and similar phenomena. The sentence of 10 years has been introduced for the Romanian citizens who commit crime abroad, as well as the possibility for the authorities to withdraw their passports for a period up to 5 years. It has been also opened a judicial enquiry related to the tourist agencies which were invloved in this kind of criminal acitivities. As expected, tourist agencies, international carriers, banks and insurancy companies will benefit most from the newest decision of the EU. Most of the Romanian citizens who cannot afford expensive trips abroad will get just moral satisfaction from the EU decision. Having in mind that Romania is one of the poorest countries in Europe, the Romanian authorities will have to take a series of new measures to convince the EU that removing Romania from the Black Schengen List will not cause new immigration pressure to the western countries. Inter alia, the
See the European Council Regulation (EC) No 2424/2001 from 7 December 2001, which amends the the European Council Regulation (EC) No 539/2001, which lists the third countries whose nationals must have visas when crossing the EU external borders and lists the countries whose nationals are exempt from this request. (Official Journal of the European Communities (www.europa.eu.int)). 105 See Romanians allowed to travel without visas: Moral satisfaction (www.ekonomist.co.yu/en/magazin/perspectives/1201/p.htm)
decision has been taken according to which the Romanian citizens will be able to travel to the countries of the Schengen Agreement if they possess at least 100 Euros per day during their stay aborad, to have medical insurance, return tickets if they travel by train or by plain and the international insurance for their personal vehicles. The similar requests have been introduced for travelling to Hungary, Czech republic and Poland, with the exception that a passenger must have 50 instead of 100 Euros per day. A series of measures has been also introduced towards the neighbouring countries aiming at preventing illegal migrations of their citizens to the EU through Romania (this refers above all to Moldova, whose nationals can enter Romania with passports only). The nationals of Russia and Ukraine will have to have visas to enter Romania. While such rigorous measures for leaving the country apply primarily for individual travellings, tourist agencies will evidently make profit by their application - a number of tours for the EU will increase and the prices of tourist arrangements will fall for there will not be visa expences, etc.
According to the European Commission Stabilisation and Association Report for Albania106, this country has taken a significant effort in the reform field since 1998. They particularly stress constructivity in solving Macedonian crisis in the area of Preševo. All this have brought Albania to the very treshhold of negotiations on the Stabilisation and Association Agreement with the EU. However, the criterion according to which Albania has been evaluated till now was exceptionally low, so much still has to be done to ensure the progress of Albania within the process of stabilisation and association. The conclusion of the Agreement itself is conditioned by the sustainable reform efforts of the Albanian authorities and by strenghtening its governing capacities with a view to ensuring the adequate implementation of such an agreement. The progress of Albania has been hindered by the conflictual political culture, in which individual interests overwhelm the general ones, resulting in political instability and bad governance of the country. There are serious deficiences in applicaton/implementation in almost every field in which Albania should take over the obligations in accordance with the future Stabilisation and Association Agreement. Despite the economic recover that has been registered, the total socio-economic conditions in Albania are very difficult - it has been calculated that almost one fifth of the population live on less than 1-2 Euros per day. Gray economy is still flourishing, obstructing market competition and discouraging potential investors. Corruption and organised crime are widespread, especially illigal trade of all kinds, which seriously undermines respect of the rule of law and the very foundations of the state. However, the development of bilateral relations between Albania and its neighbours reflects the efforts towards stability and economic growth of the region. A whole series of bilateral agreements on economic cooperation and trade has been concluded with Croatia, Bulgaria, Greece, Macedonia, Romania, Slovenia and Turkey. Albania is also among the signatory countries of the Memorandum of Understanding in regard to trade liberalisation created under the aegis of the Stability Pact for SEE. The main problem in bilateral relations with Macedonia are permanent requests of the Albanian minority in this country. However, the dialogue between Skoplje and Tirana relating to the Macedonian crisis has contributed to its solution. Thery have also concluded the Free Trade Agreement and started with its implementation. In spite of the efficient solution of the conflict mentioned above, it was stresses that Albania has to do many things to improve and strenghten its border control in order to stop smuggling and illegal trade, primarilly the smuggling of weapons. The relations with Serbia and Montenegro have been advancing, especially those with Montenegro, with which there has been improved cooperation in the field of justice and interior affairs. There have never been particular problems in relations with Croatia, as well as with Bosnia and Herzegovina, but the dialogue and cooperation have been insufficient, especially on political and economic level. The relations with the EU applicant countries have also been positive. However, Romania and Bulgaria have introduced visas for Albania during 2002 (in accordance with the Schengen regulations), which have the negative impact on free movement of people and goods. Trade relations with those two countries, as well with the other countries in the region, are still on the low level.
See Commission Staff Working Paper, Albania, Stabilisation and Association Report 2002, Bruseels, April 2002 (www.europa.eu.int)
The legal framework relating to asylum issues is on the satisfactory level, mostly in harmony with the international standards, but the functioning of the institutions is not with accordance with them. A number of measures has been yet taken - a new commisionary for refugees has been entitled, a refuge centre for applicants for asylum has been established, as well as the Centre for helping refugees and applicants for asylum. The immplementation of the provisionary system for classification of intercepted persons (economic migrants, victims of trafficking in human beings) through police interviews has been functioning well, and it will exist as long as Albania fully develops and work out the application of the institution of asylum (strenghtening the principle of non-refoulment of applicants for asylum, amending Aliens Act as regards to regulating deportation of rejected applicants for asylum, etc.). In the field of illegal migration there is a need to identify deficiences in Albanian law, as well as to undertake its amending and harmonisation with the EU standards. Governing and control of border by the Albanian side is still insufficient and needs systematic restructuring, especially in the northern part of the country (the Cooperation Agreement concluded with KFOR should contribute to it). Together with the need to continue efforts in additional securing of border crossings, it is necessary to develop the strategy of control of blue and green borders and to implement them. The risk analyses of borders are also lacking, so the illegal trade and smuggling are still in progress. The current Albanian visa regime determines the countries whose nationals do not need visas to enter Albania, as well as those whose nationals need them. The additional selection has been made among those countries whose nationals need visas - some of them can obtain visas after enternig Albania (at borders, ports, airports), the others can get them only in Albanian consulates abroad. There is no adequate information system (computer network) between Albanian consulates, the Ministry of Foreign Affairs and customs officers. Albania has concluded readmission agreements with Italy, Switzerland, Belgium and Germany. A kind of such an agreement has been concluded with Greece as well. The negotiations with few other countries are under way. The agreements concluded so far ensure guarantees for applicants for asylum and refugees, in accordance with the provision of the Geneva Convention of 28 July 1951 relating to the Status of Refugees. However, the question arises about the Albanian capacities to implement the concluded agreements.
18. Serbia and Montenegro
Since October 2000 the relations of Serbia and Montenegro have got a new dimension and have become the strategic priority of its foreign policy. Serbia and Montenegro 107 has defined as a clear objective to conclude the Stabilisation and Association Agreement with the EU until 2003 at the latest, and, as a long-term objective, to accede the EU as a full member until 2010. Although it has not happened yet, we can note that the European Union is the key partner in the process of return of Serbia and Montenegro to the international political and economic integrations and that it significantly supports the political and economic reforms in Serbia and Montenegro. In 1999 the European Union has initiated a new mechanism for the development of relations with the Western Balkan countries - the Stabilisation and Association Process, which Serbia and Montenegro joined in October 2000. The result should be signing the Stabilisation and Association Agreement, with a view of full membership in the EU. Besides the political relations, the economic cooperation has also been constantly advancing since last year. The financial support by the EU to Serbia and Montenegro is of a particular importance for improvement of these relations, especially within the CARDS Program for the Western Balkan countries. Serbia and Montenegro is a user of the "extraordinary measures" of the European Union108 (the customs duties on export from Serbia and Montenegro to the EU has been abolished, with few exceptions). The coperation in the fields of justice and interior affairs is also a significant segment of the relations. During March 2001 in Belgrade the talks about illegal migration and asylum between the EU "Three" and the representatives of the relevant institutions from Serbia and Montenegro took place. Serbia and Montenegro has also signed the Declaration concluded between the EU and the five countries of SEE on these issues. Although it had been expected after the changes in Serbia in October 200, the visa regime with the rest of the world has not been liberalised. The other European countries supported the deposing of the non-democratic regime, but they did not consent to the unconditional "opening" of the then Feredal Republic of Yugoslavia to Europe and to the world. Serbia and Montenegro had to meet a series of conditions to be accepted to the oldest European organisation - the Council of Europe. However, Serbia and Montenegro is still in the Annex I, on the so-called Schengen Black List. Why? Serbia and Montenegro has gone through a phasis of mutual negotiations and coordination in order to harmonise mutual relations, with a view to starting negotiations with the EU - elaborating the Feasibility Study and concluding the Stabilisation and Association Agreement. It would be very complicated to carry out this process easily even in normal circumstances. In the case of Serbia and Montenegro the situation has been additionally complicated by the inherited serious economic problems, the consequences of wars and sanctions, and - for Serbian, Montenegrian and other non-Albanian population in Kosovo - by the unfavourable development of the situation in the Serbian southern province, besides the efforts of the international representatives, which actively cooperate with the authorities. The process of coordination between Serbia and Montenegro has not been progressing unhindered,
See www.mfa.sr.gov.yu and www.mip.cg.yu See Vizni režim iz Šengenskog sporazuma (Visa Regime from the Schengen Agreement), Marko Nikolić, Evropsko zakonodavstvo 2/02, Ministarstvo pravde Republike Srbije, IMPP, Belgrade, 2002
because they are the two completely different systems - politically, legally and economically. These differences are among the causes of the political instability in the country. The economy and agriculture of Montenegro does not particularly require protective measures and customs. On the contrary - open borders, tourism, transit and services are the dominant orientations of the Montenegrian economic development. On the other hand, Serbia has gross and unprofitable systems which cannot survive any serious competiton, while agriculture, despite the immense resources, has been impoverished and needs years to keep step with the world. The history of disagreements is a long one. In the beginnig of 2001, the Federal Direction of Customs announced that from 12 February it would establish control points on borders with Kosovo and Montenegro, in order to stop illegal traffic of customs goods. They established seven points on the border with Kosovo and several of them on the border with Montenegro (Prijepolje, Brodarevo, Jabuka, Godovo, Mehov Krs and Uţice). According to the Federal Direction of Customs, the aim of this measure was to prevent entering the territory of Serbia the goods that are subject of customs clearance and taxation and which would otherwise avoid paying federal custom duty (in fact, it was undertaken to fill up the federal and republic budget). This practicaly meant that on the goods which go to Serbia through Montenegro, as well as those that goes in the opposite direction, the customs duties would be payed twice. Such a decision of the Federal Direction of Customs meant that the common market of the then Federal Republic of Yugoslavia practically ceased to exist. Since the payment operations within the Federation did not function through the official institutions, it was not very difficult to conclude that - from the economic point of view - the common state abolished itself. This movement was a proof that Serbian and Montenegrian economies had not been motivated to function as a unique system in that moment.109 The relations between some of the countries in the region of SEE are rich in various temptations, caused by both objective and subjective factors (e.g. the problem of refugees from Croatia, Kosovo issues, the current proceedings before the ICTY, the process of truth and reconciliation contrasted to the cases before the International Court of Justice, etc.). There is a similar emotionally burdened relation - although for different reasons - between the two members of the newly-established state. From the objective point of view, Montenegro participates in the state budget with a very small percent, but the Constitutional Charter guarantees to it the full equality with Serbia, which covers the rest of the budget. However, the persistent insisting on Montenegrian independence, as well as a separate foreign policy that Montenegrian authorities partly manages to conduct, resulted in the reciprocal reaction on the Serbian side, strenghtening the political fraction that opts for the independence of Serbia. It is beyond doubt that the newly-established state is not a good example of stability. Poverty is still a significant problem in the country.110 Apart from this, it is undoubltful that the obstacles in obtaining all kinds of documents issued by the state administration initiate corruption.111 For example, the provisions on foreign trade of the FRY in preivous years
See on www.monitor.cg.yu The elaboration of strategy for diminishig poverty is under way (see on www.srbijabezsiromastva.org.yu) 111 According to the research conducted by the EBRD in 20 countries in transition (data from 2000), it has been concluded that the costs of bribing for permits issued by state administration participated significantly in total costs of bribing: in Hungary - 39,8%, in Romania - 39,8%, in Slovakia - 33,2%, in Poland - 26,1%, in Slovenia - 24,9%. As regarards bribing related to the customs, the share of this form of corruption in the total costs of bribing is significant: in Poland - 15,8%, in Romania - 15,2%, in Hungary - 14,2%, etc. See Harmonizacija jugoslovenskih
determined a very complicated procedure for provision of a great number of permits by the authorised federal and republic bodies, which automatically increased corruption and legal insecurity in the state. It is well known that the amount of investment capital, which itself requires at least a minimum of stability, is the precondition for stabilisation and further progress of a state, which definitely cannot be achieved through such a practice. It is important to note that the above-mentioned - permits, customs duties, visa policy, etc. - were the ways of filling up the state budget, and it is still a potential reason why such procedure is difficult to give up. Therefore, the question might be asked about costs and benefits of abolition or liberalisation of visa regime/liberalization of (cross-border) transactions, as well as the question whether a country with deficit in budget can afford such reduction of its income. As regards the visa regime, replacing visas by tourist permits, or the abolition of visas, does not necessarily mean that something would not be payed for (see Chapter 6). But in the case of Serbia and Montenegro, this is just one of the differences in participation of the federal units in the state union, which causes numerous quarrels and further political instability. Nevertheless, a state buget should be built on real incomes, not on taxes and fees of this type. Taxes and fees cover 5-10% of budget in "normal"states. Finally, it should be calculated whether a country have more benefits from tourism and investments or from border taxes. It should also be considered whether it is possible to build a positive image of an open country with such tax costs for entering Serbia, which is exceptionally high in comparison with visa costs for some Western European countries, especially in the situation when it is disputable whether this cost is proportional to the things we could offer to those entering Serbia - be they tourists or investors. In the first place, it is necessary to seriously consider costs and benefits of such high amounts of border and other administrative taxes, for every delay of legal procedures initiates crime - petty, cross-border or any other kind of it. The structured organised crime that resists the entropy law is one of the reasons why Serbia and Montenegro is on the Schengen Black List. For that reason, the fight against organised crime, which must be permanent on both the state and regional level, must include, as one of its dimensions, the acceleration, alleviation and reduction of procedures for obtaining permits, visas etc. Otherwise, the influx of goods, people and investments, both on the state and regional level, will easily change its direction and go other ways, and it would be very difficult to attract them again. However, the EU tends to create the unique economic area within Serbia and Montenegro and to establish relations with the unique authority, responsible and competent for its relation to the world. The condition for the start of negotiations on the Stabilisation and Association Agreement for Serbia and Montenegro is to be a unique international subject which have a unique economic system. The additional reason why the EU insists - for the time - upon the unity of Serbia and Montengro is to avoid a series of questions that should be opened by their separation, among other the question of Kosovo as a potential initiator of further falling apart at the seams of the region that has been "patched" with difficulties (division of Bosnia and Herzegovina, division of Macedonia, etc.). For the EU Kosovo is something that has to be handled with the utmost care, although this problem could not be postponed forever. The Strategy of the European Commission for Serbia and Montenegro 2002-2006112 underlines the problem of competence, which causes want of precision in application of customs regulations. Apart from federal or republic jurisdiction, the question of customs is
carina sa carinama Evropske Unije (Harmonisation of Yugoslav Customs with the EU Customs), Radovan Kovačević, Centar za antiratnu akciju, Belgrade, 2001. 112 See FRY: Country strategy paper 2002-2006, (www.europa.eu.int)
closely connected with the fields of interior affairs, cross-border trade, etc., and it is necessary to provide coordinated approach in solving this problem. The European Commission opts for the concept of the unique economic area for all three "entities" in the country, for harmonisation of customs rates, for modern regulations in the field of customs, information exchange and cooperation in ensuring free movement of goods, services, capital and labour force on the whole territory of Serbia and Montenegro. With this aim in view the European Commission is ready to ensure special programs for help - equipment, training and experience exchange in the fight against smuggling and organised crime. Management of tax services in the previous decade was in jurisdiction of the federal units (it means that there were two Income Directions - in Podgorica and in Belgrade). After the arrival of the UNMIK, a separate tax service was established in Kosovo. All three services have received different amounts of help from the international community, and, in accordance with this, they have been developing in different ways and at different speeds. In order to provide equal management of customs tributes on the whole territory, it is necessary to carry out the universal program of modernisation and development in Serbia and Montenegro to support the process initiated by the UNMIK. The coordination on the highest possible level is necessary to enable natural persons to work and make business efficiently and under equal conditions on the whole territory of Serbia and Montenegro. The general aim is to promote modern and efficient customs system, which ensures the operativity of the unique economic area within the borders of Serbia and Montenegro. In the Stabilisation and Association Report for Serbia and Montenegro made by the European Commission113 it was said in the first place that the Commission will continue to provide every kind of help to the state union, but that all that help (even if its amount is equal as in previous years) cannot replace the lack of political will of Serbia and Montenegro. Further, it was noted that the jurisdiction in border control is still divided between the Army of Serbia and Montenegro (border) and the republic Ministries of the Interior (border crossings). Demilitarisation of border (border management is devolved from military to the jurisdiction of civil services, the unique system of border management is established) is included in the Constitutional Charter. The solution has been adopted, but the implementation has been postponed for the above-mentioned question of share of jurisdiction. The cooperation with the KFOR on the administrative border with Kosovo is satisfactory. The Federal government has made a decision aobut the administrative border, which determines the conditions and the points of administrative border crossings (on Serbian side). However, the security forces of Serbia and Montenegro do not control the international state border around Kosovo. It is necessary to take additional efforts to improve the situation on the border, which is, generally speaking, very bad, primarilly for the lack of equipment, insufficient training of officials and unclear division of duties.114 Besides, corruption is
See Commission Staff Working Paper, Serbia and Montenegro, Stabilisation and Association Report 2003, Brussels, March 2003 (www.europa.eu.int) 114 The concrete forthcoming objective of the foreign policy of Serbia and Montenegro is the accession to the NATO programme "Partnership for Peace". The membership in the programme "Partnership for Peace" has been accepted by almost all the countries in the Euro-Atlantic area. All the conuntries neighbouring Serbia and Montenegro, except Bosnia and Herzegovina, are either members of NATO or members of the "Partnership for Peace", tending to become members of the Alliance. To join the programme "Partnership for Peace", Serbia and Montenegro must treat certain issues in adequate ways - above all, the question of the full cooperation with the ICTY, the support in implementation of the UN Security Council Resolution 1244 and the Dayton-Paris Agreement, as well as the question of legal action against Belgium, the Netherlands, France, Italy, Canada,
evidently widespread, especially among structures on all levels inherited from the previous regime, which continuously obstruct reforms. The problem of corruption is particularly serious in Montenegro, although the authorities have repeatedly declared their resoluteness to apply the adequate counter-measures. According to the Report, a great number of refugees and displaced persons in the state (about 340000 of refugees and 230000 of displaced persons) is still a serious social and political problem. Although certain measures have been taken (e.g. the adoption of the National Strategy for solving the problem of refugees and displaced persons in May 2002, including work on both options - repatriation and integration), the material resources for implementation are scarce, while some problems related to return of the displaced are still unsolved. However, the agreement on dual citizenship has been concluded in October 2002 with Bosnia and Herzegovina, which improved the position of refugees. It has been objected to Serbia and Montenegro that its cooperation with ICTY is insufficient, which damages its international reputation and hinders its rapprochement to European and other integrations. Leaving aside for a moment dilemmas about the application of the Decision of the Council of Ministers of Serbia and Montenegro on abolishing visas for entering Serbia and stay up to 90 days, which abolished the reciprocity towards the citizens of the EU, there is a lack of coordination in the Report relating to the (in)existence of visa regime regulated by the UNMIK in Kosovo. This contradicts the international standards, as well as the EU regulations, according to which the regulation of visa regimes is the exclusive competence of a state. It has been also noted that the practice of visa issuing at airports or border crossing is unacceptable, and that the measures have to be taken to increase protection of travel documents and visas themselves (labels) in order to prevent forging, for the protection so far has been very weak. The unclear distribution of duties, porosity of borders, inadequate legal regulations and bad equipment at border crossings (both equipment and lack of adequate personnel) led to reputation of Serbia and Montenegro as a transit country for illegal migrants. Trafficking in human beings is a serious problems and the competent institutions have been dealing with it, but in insufficient measure and with poor success. However, the fact that competent bodies undertakes measures against local policemen involved in these criminal acts is encouraging. Nevetheless, after the scandalous decision of the prosecutor in Montenegro not to begin a suit against any of the four high state officials suspected for trafficking in human beings, let alone to extend the investigation to the others, the situation seems at least dissapointing. In the end, the Report suggests to the competent bodies in Serbia and Montenegro to harmonise their visa regime with the EU list as soon as possible (as regards the countries that need entry visas). The process of visa issuing must also be harmonised with the European standards. It is also necessary to continue and to speed up signing and implementation of the readmission agreement. The questions concerning border control must be solved and the adequate solutions implemented as soon as possible. Furthermore, it is necessary to instruct all the officials who work at border and to inform them of modern migration flows and ways of their realisation. Acts on asylum and stay of aliens, coordinated with the European standards, have to be adopted.
Germany, Great Britain and Portugal before the International Court of Justice. Through the programme "Partnership for Peace" Serbia and Montenegro gains the possibilities for wider regional approach to the cooperation related to strenghtening security and stability. The concrete idea is strenghtening security on borders. The common values and interests concerning this question will enable better coordination of border control through the Programme, through establishing new cooperation structures, developing the existing arrangements and proposing new programs in the field, in the interests of all the partners.
The participation and help of the internatonal community in consolidation of the situation in Serbia and Montenegro is of great importance. Serbia and Montenegro is fully aware of its international obligations and it is determined to satisfy them. However, it is necessary to take additional efforts to realise the adopted measures, to accept the objections of the EU and to correct mistakes. Every step forward relating to the above-mentioned issues is a great asset, and it contributes not only to positive consideration of the further request of Serbia and Montenegro to be removed from the Black Schengen List, but also to an increase in a general level of security in Serbia and Montenegro.
19. The EU Standpoints - What is Expected from the Region of the South Eastern Europe
Why does the EU want to enlarge its membership as soon as possible? Simple reasoning leads us to the conclusion that without enlargement, or if the enlargement is postposponed, the costs for both the EU and the applicant countries increase: Postponement of the enlargement of the common market and low economic growth in applicant countries would deprive the Member States of various kinds of economic benefit For the applicant countries, a failure in the EU accession would affect the initiatives of economic reforms, discourage foreign investors and decrease economic growth Absence of the enlargement could cause significant political instability in Europe, the process of democratisation could be subverted and the potential consequences would affect the Union Without enlargement, the Union would be significantly weakened in its efforts against organised crime, illegal migration and terrorism Disapointment of the applicant countries in the Union would provoke new tendecies of "Euroscepticism" in the Member States115
Starting from the fact that the EU wants to accelerate the accession process as much as possible, but that it does not want to "import" instability, it is necessary to pay attention to the requests in this direction and to take actions towards reaching stability, not only on the level of every country individually, but also on the regional level. According to the Report of the European Commission on the process of stabilisation and association for South Eastern Europe116, it is estimated that about 1,1 million of people on the territory of the Western Balkans is still displaced. Although there is a significant progress in providing accomodation for them, there are still numerous obstacles that prevent people from achieving their right to return or to stay. Regulation of the problem of restitution of property still vary from country to country and it has to be harmonised. Due to security reasons, the return it is still impossible in some parts of the region. Further, administrative procedures are often complicated, and they do not guarantee the access to the achievement of the fundamental rights, such as citizenship and social income. Economic activities and, accordingly, employment possibilities in many areas of return are still far under the national average. Generally speaking, despite the significant economic growth in the region last years, there is still high unemployment rate ranging from 15% in Albania to 40% in Bosnia and Herzegovina. The countries of the SEE region showed a great interest in liberalisation of the EU visa regime and in its migration policy as a whole. It is considered that a dialogue on these issues could significantly influence solving the problems mentioned above, as well as a general perception of the EU in the SEE region. A carefully considered solution would benefit both the EU and the countries in the SEE region. However, the solution depends primarily upon regulation of migration flows towards the Union, having in mind the fact that the illegal
See www.europa.eu.int See Report from the Commission of the European Communities. The Stabilization and Association Process for South East Europe, Second Annual Report, 2003 (www.europa.eu.int)
migrants from the SEE region have permanently been entering the EU since 1990s. Only when the authorities in the region, as a starting minimum, significantly improve the rule of law principle, ensure the efficient control of their borders, apply the adequate systems of documents protection and take serious and extensive measures in the fight against organised crime and corruption, the EU could seriously start considering its visa policy. The full application of the readmission agreement in each of the countries in the region would also influence the final decision. At numerous meetings of high officials it has been underlined that the security issues are of the utmost improtance for the EU. At the Summit of the European Union in Seville, as early as in June 2002, the leaders reached a general agreement that in future relations with the third countries the cooperation in preventing illegal immigration should be unconditionally requested, and that the Union should react by counter-measures if some country "systematically" avoids its obligations.117 It should communicate the information that the EU might refuse economic and other kind of help to such a country. All high officials of the Union are close to the agreement concerning this question. The heads of states and governments of the European Fifteen have agreed to take prompt "practical action" in police and other forms of protection of the Union external borders. Further, at the Conference on transnational organised crime held in London (November 2002) a clear message was sent that the countries in which organised crime flourishes have no place in the European Union. It is understandable that a country which goes through the process of transition is a turbulent ground, and the consequences of these turbulences might influence the whole region, and even potentially shake the system of the international organisation. The EU policy concerning these issues is very clear and restrictive. This reasoning was the basis for stipulating membership by certain legal and economic standards that have to be met unconditionally on the territory of a country that applies for the accession to legally and (more or less) politically uniform organisation as the Union. It must be clear that the Union is not a humanitarian organisation aiming at having as many members as possible, under any condition. The representatives of the European institutions who participated at the meeting "Liberalisation of visa regime and trafficking in human beings" held in Belgrade in March 2003 have concluded that there is a direct connection between these two problems. On the other hand, at the end of the conference of eight countries of the Cooperation Process in South Eastern Europe held also in March 2003 in Belgrade, it has been concluded that for solving the problem of trafficking in human beings it is necessary, inter alia, to strenghten cross-border cooperation, but also to alleviate visa regime, for visas cannot stop crime. Strict visa regimes do not prevent organised crime nor trafficking in human beings, but they hinder free movement of people, which is the condition for a free trade zone. It has been concluded that the main problem lies not only in border policy, but in excellent organisation and good connections of criminals. They have particularly stressed the need for close cooperation in the fight against human trafficking and organised crime and estimated that liberalisation of visa regime would contribute to approching the region to Europe. The regional cooperation is essential for harmonisation of visa regimes between these countries. However, the attitude of the EU representatives in this occasion also was that the liberalisation of visa regimes between the countries in the region is their problem in the first place, but that the EU will continue to support the process of regional cooperation and thus support liberalisation of visa regime within the region. It has been concluded that the problems in the countries in the region are similar, but that the coordination
See on www.b92.net, Samit EU: Tesna saradnja u sprečavanju ilegalne imigracije (The EU Summit: Close cooperation in preventing illegal immigration), June 2002
and cooperation between them is insufficient. A country can partly enter the European integrative processes independently, even competing with the other countries in the region, but the countries of the region must act together in relation with the EU on some platforms, for example in solving regional problems such as organised crime, for it is the only way to eradicate it efficiently. The process of the EU enlargement will have numerous consequences for the countries of the SEE region. In order to fulfill the obligations for the reception to membership, the countries that will accede to the EU in 2004 will have to ensure a high level of protection of the external borders of the Union, to ensure interior security, as well as quick and easy flow of people and goods on border crossings. However, the EU enlargement will inevitably lead to abolishing non-visa regime between the future member states and the Western Balkan countries. This fact should not stop the necessary support to and coordination with the Western Balkan countries in fight against organised crime and illegal migration. Such cooperation will be a great help to these countries, which are at the very start of their way to the EU. The EU was very successful in solving the problems in Ireland, Portugal, Spain, and Greece, especially in establishing democracy in these countries. If they were successful there, why should not they be in the Balkans? However, having in mind that we are talking about the region where the humiliating carrot and stick policy has been applied so far, the EU might consider the change of "tools" used in this process.118 A clear message which would prove to the Western Balkan countries that the "Europeisation" is not a mere promise would be enough.
See Assistance, Cohesion and the New Boundaries of Europe: A Call for Policy Reform Executive Summary (www.esiweb.org)
20. Border Control and Customs System - the Fight against Illegal Migration and Organised Crime
Freedom of movement has been one of the basic ideas of the EU since the day of its foundation. However, only after the conclusion of the Schengen Agreement in 1985 the control of movement on the internal borders between five signatory countries was lifted. In November 1989 the Berlin Wall was pulled down, which slowed down the efforts in unifying the European borders. Expecting the fall of the Wall, the Federal Republic of Germany had previously requested from the other four signatory countries an additional declaration, which would ensure enlargement of the Schengen territory from the moment of unification of the two Germanies. But the other four countries were restrained concerning this question, for they feared from a flood of refugees who would run to Western Europe through the Berlin Wall and West Berlin. It turned out, thus, that the intention of the signatory countries was, in fact, to build a new wall, this time around Western Europe, in order to stop the influx of immigrants. When the Schengen Agreement in 1995 finally came into force, it has been applied by the five signatory countries and the two new members - Portugal and Spain. In order to become members of the Schengen Agreement, the countries had to adopt the common visa policy, to ensure police and judicial cooperation and to connect with the central computer system, which gathered information on cross-border crime, especially on drug smuggling and illegal migrants. In other words, the condition for opening the Schengen "gate" was a strong control of the external borders. The objection of Germany that Austria and Italy had not fully satisfy the conditions demanded postponed the application of the Schengen Agreement on their territories. The main reason was the fact that Austria bordered upon the former countries of the communist block (the length of the border was 1300 km), while Italy was surrounded by the sea, and the long costal line was difficult to control completely. Having in mind that a great number of illegal immigrants (mostly from the territory of Western Africa, the Near East, the Balkans, etc.) had been trying and succeeding to enter the EU illegally, crossing these borders, Germany accused the Austrian and Italian authorities that they had done nothing to stop this phenomenon. The agreement with Austria was concluded after it had presented the fact that it had spent almost 17 million dollars for equipment and staff for securing its eastern borders, but also after it had threatened to block the Treaty of Amsterdam if it would still be excluded from the Schengen territory. The "gate" towards Austria was lifted in July 1997, and towards Italy in October 1997. There had been many objections to the acceptance of Greece, for it has no common border with any of the Schengen member countries, it spreads over thousands of islands and it is surrounded by the region characterised as the main origin of illegal migrants. The Schengen territory today is almost identical to the EU territory. Great Britain and Ireland are the only members of the EU so far which did not signed the Schengen Agrement. The authorities in Great Britain oppose this idea, claiming that, being an island, their situation significantly differs from those of the continent. Passport controls are still considered the most efficient mean in the fight against organised crime and illegal immigration. One of the measures undertaken in order to substitute the absence of internal borders is a close cooperation of police and judicial bodies of the Schengen member countries. For example, the agreement has been reached on pursuit of suspects on the territory of another country. So, the German police is entitled to go in pursuit of an offender 10 killometers from the border, on the territory of the Netherlands.
The controls on internal borders were lifted, but another measures have been undertaken as compensation. The Schengen Information System (SYS) is, in fact, the computerised list of description of people and objects which are missing or wanted by the organs on the territory of some of the member countries, accessible to all the authorised bodies of all the countries in any time.119 Border control is the issue of a great importance as regards liberalisation of visa regime. The idea of the Schengen Agreement was partly those of regulating the influx of migrants from the other parts of Europe and the other continents and to ensure freedom of movement within the member countries. Yet, taking into account that the Schengen Agreement is restrictive to the nationals of the non-member countries, it seemed as an impulse for various criminal organisations dealing with illegal transport of migrants. Criminal organisations are more flexible, better equipped and more able to adapt to new situations (changing ways and modes of transport) than state organs, for the coordination on the state level is always too slow, which makes the problem worse. The particular problem in SEE (it was a case in CEE as well) are long and permeable borders. It is very difficult to control borders in such conditions. Take the example of Poland. The organisation of the Polish border police looked like this: their legal power was adequate, but the implementation was very weak due to topography, isufficient training, lack of technical equipment and corruption. This was a special problem as regards trafficking in human beings and smuggling of people, because this problem in Poland had been treated in the following way: all the effort in the fight against trafficking in human beings had been focused to the border control. There were no adequate legal provisions which would expand the control measures to the whole territory of Poland. There has been a similar problem in Ukraine - there is no administrative body even today that would deal exclusively with illegal migration; further, the sum from the state budget allocated for the fight against trafficking in human beings is insufficient. On the opposite side, there is an example of Hungary. The recent changes in Hungarian legislation have made the sittuation better by incriminating trafficking in human beings, while previous changes from 1997 have defined more precisely the rights and duties of border police staff, whom wider competence has been given. As a result, the mission of Hungarian border police has been changed - their jurisdiction has been expanded and the right given to investigate wider range of violation of regulations, including smuggling of people. They have been authorised to gather secret information. The border police has been divided into 10 directuins, each with departments for criminal investigations and intelligence services. Mobile units, established in 1998, have been entitled to operate both on borders and within the country. As a result, the border police can gather information on its own and to fight against criminals and those who break border regulations, instead of leaving the investigation to the police. A vulnerable part of the Polish border was the part that bordered on four post-soviet countries, 1245 km long, and which had only 28 observation posts up to 1990. Their number increased to 42 up to 2000. They are computerised today and interconnected by the internal system of communication. Their equipment has also been significantly improved - they possess modern observation devices, new generation devices for the control of documents, detectors of illegal migrants hidden in cars or containers, state-of-the-art field vehicles and helicopters, so the situation is much better now. It is important to note that the control of the Polish border has been drastically improved since the end of 1997, when the Polish government has concluded the agreement with the European Union Commission relating to the investments in modernisation of border infrastructure, border
See Fortress Europe: The Schengen Treaty creates a new wall to keep immigrants out (www.archive.tol.cz)
services, security in transport, control of validity of documents, etc, having in mind future accession of Poland to the European Union.120 At the already mentioned EU Summit held in June 2002 in Seville, a series of additional steps has been taken for protection of the EU external borders and prevention of illegal immigration, together with measures against the third countries which insufficiently cooperate in it with the European Fifteen. The EU leaders have underlined that they are willing to help these countries with money and technology, but if they still do not cooperate they will stop any further development of relations with them. Nevertheless, the EU will respect the contractual obligations and will not jeopardise developmental objectives. In this view granting political asylum will be made significantly stricter, and visa regime with the third countries will be reconsidered before the end of the year. It means that for those countries which, according to the EU, do not make enough efforts to stop illegal immigration, visa regimes migt be introduced or made stricter. Therefore, the question of security regulation is becoming more and more one of the key problems in the Balkans, which cannot be solved through economic or social measures only, but requires specific methods and solutions on both individual and regional level.121 The EU officials claim that there are no shortcuts for accession of Serbia and Montenegro to the EU, but liberalisation of the Schengen visa regime cannot be expected before much more efficient border control and work of customs services is set up, as well as before a fruitful dialogue between Belgrade and Priština is established.122 The problem of Kosovo is particularly delicate for Serbia and Montenegro and there is the intention to solve it in full cooperation with the international community. As a special problem there has been stressed the impossibility for the state to control the border in Kosovo. The efficient control of this part of the border would be in function of the efficient fight against all kinds of organised crime, and all the countries in the region would have benefits from it.123 The objective in this case, as well as concerning the other questions, is to reach European standards, which is the best way for overcoming problems.124 However, in view of liberalisation of visa regime Serbia and Montenegro must re-organise the whole system of border control and to bring legal and other provision related to the question of security on borders in line with the EU standards. In this view, there has been projected a unique system of border control in the last two years, 125 in which all the tasks are performed by the border police, in accordance with the EU standards and the Schengen principles. Further, the customs offices and border police should be provided with the most efficient and best equipment, transportation and comunication means. A draft bill for
See Migrant Trafficking and Human Smuggling in Europe: A review of the Evidence with Case Studies from Hungary, Poland and Ukraine, International Organisation for Migration (IOM), Geneva, 2000. 121 See www.emins.org.yu (Regionalne inicijative i multilateralna saradnja u Jugoistočnoj Evropi - Regional Initiatives and Multilateral Cooperation in South Eastern Europe - Dr Duško Lopandić) 122 From the press conference of the Delegation of the European Commission in Serbia and Montenegro, on which the newest proposal of the European Commission for further European integration of the SEE region was presented (Politika, 23 May 2003, page 4). 123 In reports of the international organizations Kosovo is mentioned as a problem as regards organized crime, and a particular problem is trafficking in human beings (the rpesence of military contingents); see more Trafficking in human beings in South Eastern Europe, B. Limanowska (ed.), UNCHR/OSCE/UNICEF, 2002 124 The statement of the Minister of foreign affairs of Serbia and Montenegro at the Conference in Ohrid related to the problem of border control in the region (Politika, 23 May 2003, p.2). 125 Within the program for common control of borders EAR helps the process of equipment replacement on particular border crossings in Serbia and Montenegro. We have received recently the 40 W power unit for remote border areas where it is difficult to maintain stable origins of power. The cabins which form offices when joined together have been delivered and prefabricated.
the future customs act of Serbia is currently under consideration in the competent ministries. Customs officers should be given authorisations similar to those of their colleagues in the EU countries. It means that they would be armed and authorised to stop all means of transportation even within the country, including personal cars. There is a suggestion in the draft bill to authorise customs officers to search warehouses of companies and houses of suspects. Such a service would have to be equipped with modern devices for control of vehicles and passengers. The regional cooperation is also of the utmost importance, as well as the experience of colleagues from countries outside the region (USA, EU). Customs officers must have a top-level training.126 As regards Montenegro, the Ministry of the Interior of Montenegro will take over the complete control of the state border till the end of the year. With a view of modernisation of the security sistem of the state border, in accordance with the needs of the Republic of Montenegro, a model of border security system has been projected, which start with realisation in the course of this year. In the beginning of 2001 on the Ministry level a police expert team has been established that coordinates activities related to repression and detection of human trafficking and monitors, controls and directs the activities of the teams in the security centres. Intensive cooperation has been established with the security services of neighbouring countries, aiming at exchanging information on ways of human trafficking and its victims, as wel as on connection of criminal organisations that stay behind these illegal activities, in accordance with the statement on the exchange of information on the illegal movement of people, signed by the ministers of interior affairs of the SEE countries at the Second Regional Forum of Ministers in Zagreb. This Ministry has established communication and intensified cooperation with the police in several countries, on bilateral and regional basis, giving the priority to the immediate cooperation with Italy and Albania, with which the agreement on cooperation in repression of organised and cross-border crime and prevention of illegal crossings of the state border has been signed.127 In the end, we present as an interesting example of a so-called "Smart Border Project". Namely, between the governments of the USA and Mexico the agreement on border control has been concluded for frequent attempts to transport illegal migrants from Mexico to the USA (and vice versa, but these migrants are of a different profile). Frequently, due to difficult travelling conditions (passing through a desert), the immigrants who had overestimated themself died. This is a part of the Action Plan of partnership in the control of the border between the USA and Mexico: Providing Infrastructure: 1. To develop and apply a long-term strategic plan which ensures coordinated human and technical infrastructure, in line with frequency and extent of the cross-border traffic To remove "bottlenecks" on the borders
In view of this the experiences of SECI in training the officers from the member countries of the Initiative who work on borders. The project team within SECI has included the following topics to the trainings: the unique implementation of the international agreements relating to border crossing (the revised TIR Convention, Istambul Convention, Nairobi Convention, Kyoto Convention), procedures for risk estimation, drug smuggling, etc. (See South East European Cooperative Initiative, Border Crossing Facilitation Project Group Meeting, October 1997, Rhodos, (www.secinet.org)) 127 See www.mup.cg.yu
4. 5. 6.
To estimate resistance of infrastructure at border crossings, communication and transport systems in order to identify problems and to take adequate measures To synchronise working hours, to improve infrastructure and traffic control in both directions on both sides of the border between the USA and Mexico To revitalise the existing mechanisms of bilateral coordination on local, state and federal level, focusing on operations on border crossings To find common financial mechanisms of financing projects for work improvement on border crossings
Ensuring movement of people: 7. 8. 9. To extend usage of security electronic network for quick examination of passengers (SENTRI) To establish a common, improved mechanism for exchange of information on passengers who fly between Mexico and the USA and other relevant flights To increase the number of services that help and consult migrants, as well as those that deal with prevention of human smuggling. To extend the Woking Group for preventing smuggling and illegal trade To continue frequent consultations on visa policy and procedures of visa protection (from forging). To ensure access to information in databases of consular services of another country To organise joint trainings in the field of investigation and check of documents with a view of increasing possibilities for detecting forged documents and breaking chains of smuggling To develop a system for information exchange (database) To extend cooperation in detection of and taking adequate measures against potentially dangerous nationals of the third countries who present potential threat to national security
Ensuring transport of goods: 14. To extend partnership with trade groups in private sector and importers/exporters to diminish possibility of smuggling and to accelerate procedure of cargo check To continue developing and applying common mechanism for quick exchange of customs information To continue common efforts in repression of contraband (smuggling of drugs, weapons and other dangerous things) and in prevention of money laundering
21. Suggestions and Possible Solutions of this Problem
The relations in the region of South Eastern Europe are determined by the following elements: governments in all the countries of South Eastern Europe has been democratically elected; all the countries, with no exception, has defined as their stategic objective the connection with the European interative tendecies, as well as the accession to the European Union; foreign forces - NATO in the first place - are present in the region (Kosovo, Bosnia and Herzegovina); all the countries in the region are either the members of NATO, or they will become members soon (Romania, Bulgaria), or they are members of the programme "Partnership for Peace" - except Serbia and Montenegro and Bosnia and Herzegovina; almost all the countries have serious economic and social problems, and some are still solving the problems of interior political stability; the countries on the territory of former Yugoslavia also face direct consequences of the disintegration of the country and wars in the last decade of the 20th century: a great number of refugees and displaced persons, wast material damage, the consequences of the international isolation and - especially in the case of Serbia and Montenegro - the necessity of punishing war criminals and cooperation with the Hague Tribunal. As regards the exterior influence on the region of SEE, the connection with the European Union and NATO requires previously the regional problems to be solved, or at least tensions to minimised. The European and Euro-Atlantic structures do not want the overflow of the SEE crises, so the regional stability, including the stability of individual countries, is becomming the priority and the condition for approaching the European Union. In these circumstances, the foreign policy priorities of the SEE countries are the following: approaching the European Union, aiming at becoming its member; normalisation and development of relations with neighbours, which is the question of particular importance for citizens of the former Yugoslavia, especially for refugees, as well as strenghtening regional cooperation.128
WHAT HAS TO BE DONE The SEE countries should endeavour to act as reliable, rational and predictable partners, as a factor of stability, not as risk factors or conflicting sides. The participation and help of the international community in consolidating the situation in South Eastern Europe is undoubtedly very significant. It seems that these countries are fully
See more on www.mfa.sr.gov.yu
aware of their international obligations and determined to satisfy them. Taking into account the huge risks related to the change of borders, especially in the Balkans, the common European future which makes borders and minority problems relative is the best solution for this region. The harmonisation of national legislations with the European Union law is equally relevant. It is a huge task in the filed of law. The countries will still need both expert and material help in harmonisation with the EU standards. The help from the EU is expected, but it is also necessary to reach the consensus within the states themselves in cooperation of expert institutions, international and non-governmental organisations. There is only one way for solving many current problems, disintegrative in character, which shake the SEE region - the integration in the EU. Putting all the SEE countries on the so-called White Schengen List is primarily a political question. There is no completely precise list of conditions that some country has to meet in order to establish a visa-free regime with the Schengen signatory countries. Yet, one can conclude that the main conditions are the following: visa abolition for the developed countries, bringing visa policy in line with the EU requests, technical protection of passports, political and economic stability, border protection, adequate legal regulations and harmonisation of legislation with the EU. A technical aspect of this problem is of a particular importance - it is necessary to establish adequate control of movement of people and goods, to stop every kind of illegal trade, to instruct border police for border control and to achieve regional cooperation. There are no big differences between the conditions for the accession of an applicant country to the European Union and those required from applicants for the accession to the Schengen Agreement. CONCRETELY: It is necessary to conclude and completely implement the readmission agreement. It is also necessary to apply the project of the National Action Plan, which has been already elaborated by all the SEE countries, which contains the full implementation of the Schengen criteria related to border control. Further, it is necessary, as soon as possible and in accordance with the EU standards, to adopt border acts and aliens and asylum acts. It is urgently needed to produce new, modern and adequately protected travel documents, in accordance with all the European standards, which should replace those already existing. According to the regional police services, there is a new problem for this area - it is becomming a country of destination for illegal migration, and this problem deserves a special attention. Further, the customs offices and border police should be provided with the most efficient and best equipment, transportation and communication means. The risk of a "black market" of passports and other documents is still big and it is necessary to pay a special attention to services that issue passports and the rest of the administration authorised for travel documents, citizenship certificates, etc. It is also necessary to establish strict controls on border crossings, to secure them and provide computer systems (connection with police database, Interpol, etc.), to ensure regular supervision and control of borders and staff, etc. The protection of borders must be complete. Among other things, it is necessary to establish adequate institutions that would deal exclusively with the questions of integration of the SEE countries to the EU, to facilitate coordination of all the activities related to this process, which is obviously a long-term one.129
In Croatia and Slovenia the ministries for the European integrations have been established (see www.mei.hr and www.gov.si
For the efficient solution of the problem of transnational organised crime it is necessary, inter alia, to increase cross-border cooperation in the Balkans and to alleviate visa regime, for visas do not contribute to crime prevention, but only hinder free movement of people, wich is the precondition for free trade. It has been concluded that the problem is not in the border policy, but in excellent organisation and good connections of criminals. After breaking the chain of organised crime, undertaken after the assasination of the Serbian Prime Minister in March 2003, it is reasonable to expect drastic reduction of the field of organised crime in Serbia.130
WHAT THE EU SHOULD DO?
The important help measures from the EU CARDS program are assigned just to the projects supporting regional cooperation, which open possibilities for recovering some the old connections and starting new regional and international cooperation, as the preconditions for good neighbourliness. The regional cooperation contributes to "porosity" of borders, but in a positive sense. This is important not only for liberalisation of visa regimes, but also for freedom of movement. Conflicts are left aside, and the space is opening for solutions through regional cooperation. CARDS has assigned help to "states", but it insists upon using them for development of the "region" and regional cooperation (e.g. the sum assigned to Serbia and Montenegro is assigned to Serbia (Kosovo) and Montenegro, for all the three regions are dependent on foreign help131). The EU has been overflowed with refugees and applicants for asylum during the conflicts that took place in these territories. It is overflowed with them even today, but these are the so-called economic migrants.132 Yet, the SEE countries are not in the state of emergency
More about the repression of the problem of trafficking in human beings and smuggling - see Krijumčarenje ljudi- Krijumčarenje žena i dece (Human smuggling - Smuggling of women and children), CUPS, 2001 and Trgovina romskim ţenama i decom - Faktori rizika (Trafficking in Roma women and children - Risk factors), CRS, 2003. 131 The influx of foreign donations has a particular influence to Montenegro and Kosovo. See the report of the International Crisis Group for Montenegro (Serbia and Montenegro: A Marriage of Inconvenience, 2003, www.icg.org) and Assistance, Cohesion and the New Boundaries of Europe: A Call for Policy Reform Executive Summary (www.esiweb.org). 132 On the other hand, the EU itself takes some effort trying to stop sitgmatising aliens. A good example is the report of the special working group, which, by order and subvention from Brussels, has just concluded that there is no connection between immigration, crime and unemployment and consequently, there is no reason to treat emigrants as pottential offenders. It has been particularly stressed that there are no reasons for adopting and applying restictive immigration acts (the statement of the EU Commissioner, Politika, April 2003). The Report relies upon 17 research papers of the expert working groups. The common denominator for them is the conclusion that aliens are at start offered jobs that domestic population do not want to accept. Low wages, bad accomodation and lack of communication between domestic population and newcomers lead to ghettoisation of aliens, which result in diffculties in integration. The forced itegration which has been recently practiced in Austria has also been criticised. The coalition government of the Austrian right has officially stipulated prolongation of residence and work permits by taking courses in German language and passing the exams, as well as by the "addapted behaviour". There are similar requests - unofficial, though - in Germany as well. As an alternative, a more humane attitude towards aliens has been presented - offering better working conditions, accomodation and lending a neighbour's hand to aliens would be a motive and stimulus for integration, as it is said in the Report that the European Commission should adopt soon as a principled act, which should be understood as an appeal to the governments of the Union Member States to create preconditions for humane integration of newcoming aliens. At the same time,
any more. Take the example of Kosovo: the expelled Albanians returned to its territory soon after the NATO intervention. After the "boom" of small business which happened afterwards (mostly production/export of building material, activities connected with renewal, import, cooperation with international organisations) and gave the illusion of standard growth, stagnation in Kosovo occured as soon as 2001. The Albanian workers still do not go to Serbia for the lack of work there and tensions related to the territorial conflicts that are still high. Montenegro could offer only seasonal jobs in some places, for, like Serbia, it also faces unemployment. The situation is similar in Macedonia, while Albania is treated in reports of the international organisations, unfortunatelly, not only as a country of origin of illegal and economic migrants, but also as leading in number of victims of human trafficking hailing from Albania (besides, the Albanian mafia is often designated as a key factor in all the world chains of organised crime and the human trafficking network throughout Europe and the world), which leads to an absurd conclusion that labour force is the main Albanian export product. It is important to mention that the current level of unemployment in Albania is 15%, comparing to 40% in Bosnia and Herzegovina. There are another examples, but this one is enough to conclude upon the current problem, which differs significantly from those we had been facing during previous decades. It is necessary, therefore, to start energetically restructuring and/or revitalisation of dying or ruined economies in all the SEE countries to increase employment possibilities, as well as to reduce the unemployment rate and, consequently, the economic migration. It is necessary to be sure that the means assigned by the EU are spent on socioeconomic development, for all the other forms of help accustom citizens to deceptive standards. If such financial injection is once withheld, it could cause falling to an "addiction crisis" with catastrophic consequences. The allocated means are stimulative and must be used for a longterm help to economy and for gradual increase of standard (of course, through regional cooperation, starting production in undeveloped parts of the region, etc.). It means that the EU resources should not be used for extinguishing local fire of ethnic conflicts, nor to buy social peace, nor to be used for that purpose by the authotiries in the region, but to be used for eliminating causes of instability in the region. It is necessary, therefore, for the EU to slightly modify its approach to this region, but above all it is up to the political factors in the SEE countries to agree with the EU regulations and requests and to transform situations in their own countries. On the way towards the European integrations much still has to be done to solve the existing, pressing issues, such as: a weak system of the rule of law, still unsolved ethnic conflicts (Kosovo, Macedonia), difficult economic situation, unsolved questions concerning return of refugees and displaced persons and their security, corruption, crime and the lack of political will for the interregional cooperation. The help of the EU in these fields is expected - it must adapt its approach when helping the Balkan countries to integrate into the European family. However, it is up to the Balkan countries themselves to carry on in strenghtening their democratic structures and in respecting the principle of the rule of law, to advance further in respect of human rights and in establishing civil control of armed forces. The citizens of these countries must know that they could be accepted to the European family only through their own efforts. THE ROLE OF NGOs
the act would oblige politicians, officials and media representatives to contribute to creation of the climate of understanding and mutual respect between aliens and domestic population.
The third sector has a significant role in the process of democratisation in the region. It has an important place on the political scene, and that place should be maintained and advanced. It is beyond doubt that with democratisation and opening the countries in the region an interest for investments in its development will increase. The general social climate, changes in relation between states and local governments, strenghtening of economy and greater willingness and capacities of individuals to contribute to the development of non-profit sectors through their donations and professional and volunteer work are not such a remote perspective. The Stability Pact for South Eastern Europe, the Process of Stabilisation and Association of the countries of South Eastern Europe, as well as the majority of the regional initiatives in the Balkans, point out to the increased reliance on non-profit sector in renewal and development of the region, its democratisation and stabilisation. In the first place, it is necessary to take actions for bringing national legislation in line with the regulations in the EU countries, especially those that would contribute to including the countries to the White Schengen List, if they are not yet on it. The role of NGOs in this would be to give their contribution and to participate as experts in the process of harmonisation of national legislations with the EU provisions, but also to support, through a wide campaign and pressure on their governments, and to take the adequate role in creation of a wide movement in public and media for joining modern European integration processes. The information campaigns should also deal with spreading the spirit of tolerance, with work on creating an open society without xenophobia, with the change of atmosphere and with geting people acqauinted with the international institutions.133 Written word should be the subject of strict criticism if it incites interethnic intolerance. It holds not only for journalists' reporting, but also for statements and attitudes of authorities in particular countries, which could be the taks of the NGO sector - to warn and to react to such statements.134 WHICH ARE THE CONSEQUENCES OF (NON)LIBERALISATION OF VISA REGIME? WHAT COULD HAPPEN AFTER JUNE 2004? In the countries in transition, such as the countries of SEE, it is necessary to make turns in economy (in a sense of the process of owner's transformation), which necessarily causes that some employees lose their jobs. When the economy is "knocked down", it cannot be saved by closing borders (neither open nor hidden). Therefore, it is not efficient to carry on with preserving weak economies through customs and other protective measures instead of strenghtening them through market competition. Economic instability is the problem that should be dealt with seriously. Further, one should not underestimate the role and influence of maintainig connections between relatives, linguistic factors, etc. when the citizens of the Balkan countires travel abroad. Having in mind the inevitability of the Schengen enlargement eastwards, we can conclude that its procedures will not only make travelling more difficult, but also the legitimate request for cross-border contacts imposed by ethnic or linguistic similarities. For that reason the question of limitations imposed by the Schengen Agreement is of the utmost importance among the Balkan countries in the first place, even more important than possibilities for travelling and connections
See the EPUS research in the Appendix 2. For example, the statements in the Croatian press that the objective of the Igman Initiative is the "creation of new Yugoslavia", then the former infromation war between Serbian and Croatian (un)authorised bodies about the "war indemnity", etc. (e.g. see http://www.hrt.hr/vijesti/arhiv/2003/01/30 KRV.html).
with the current Schengen members. The influence of progressive imposition of Schengen requests to the applicant countries will soon be felt by the members of Hungarian national minority in Romania, Ukraine and Serbia and Montenegro, as well as the members of Croatian national minority in Serbia and Montenegro, German and Slovak minorities in Romania, etc. A special attention should be payed to the provisions of the Council of Europe Framework Convention for the Protection of National Minorities, as well as to a great number of bilateral agreements which explicitely regulate these relations. It is true that the Schengen regulations include a certain degree of elasticity as regards, for example, "family connections", "local situation", etc., which partly alleviates their strict priciples. Yet, if this elasticity is not realised on time, the question of the adequate treatment of national minorities would arise, which would cause tensions between and within the countries. To make matters worse, it could cause the conflict of legal rules, the principle pacta sunt servanda would be violated, etc. The political relations between the countries of the SEE region are often emotionally burdened with questions inherited from the former common state. We can take the exampel of Macedonia, which experienced the introduction of visas by Slovenia as a "slap in the face of friendship of the two countries". The public opinion in Serbia and Montenegro also reacted emotionally as regards the visa regime with Croatia. It seems that it was more important to blacken the neighbours than to consider the possibilites for removing the countries from the Schengen Black List, as well as to ask why at all some of the countries are on that list of "the riskiest". In October 2002 an article on Serbia and its neighbours was published in the "International Politics" of the Institute for International Politics and Economy. A part about the "deemotionalisation" of national conflicts is especially interesting: "...If, for example, one mentions Montenegro, it should not be allowed to them to jump and say that they do not allow the secession, or to the others to say that they do not want to live under Serbia and Serbian pressure. It should be asked instead: how much does it cost and which are the consequences, is it good or bad, and to whom?... Such a dialogue has a therapeutic effect...Another issue... is the independence of Kosovo... In our opinion, it would simply continue the crisis reaction, put Macedonia in question, as well as the very concept of Bosnia... The international community should count up how much the soldiers in Bosnia and Kosovo cost: they cost fifty times more than the help that this region currently receives..." The author of the article was the first Prime Minister in democratic Serbia, Dr. Zoran ĐinĎić. The answer presented above is the priniple he opted for all the time, and it can be applied not only to Serbian policy, but to the very question of regional cooperation. The regional cooperation is beyond doubt the key for the lock called development, prosperity and integration. It does not follow that national and other differences will be obliterated, but that through cooperation on the benefit of all sides a solid economic background could be achieved as a precondition for promoting traditional and other aspects peculiar to every nation, race, religion and/or ethnic group. With a view of developing such economic background, the EU can help in economic and social development of the region, but only citizens themselves can achieve economic development, more efficient institutions and a society that will respect laws and individual rights. It is up to us, therefore, to carry on the reforms in our own countries, to improve our relations with neighbours, for our own sake above all, for such reforms could only be to our benefit. If we increase the social product and improve economy and trade, the tempo of the accession to the EU will not be that important, for we reform our society for ourselves. The abolition of the visa regime will inevitably happen in that case.
The case studies that follow are given for more detailed review of the relevant field which is the main problem in the SEE countries - the fight against organised crime and illegal migrations, with description of these processes in some of the applicant countries. Some successful examples are given (Hungary, Bulgaria and Romania in the first place, being our closest neighbours which already enjoy benefits or are about to access the EU). Bulgaria and Romania are of a special interest, for they managed to be removed from the Black Schengen List. There is also an axample of Turkey, which is not advisable to follow.
CASE STUDY I Hungary135 1) REFERENCES Commission Opinion COM(1997)2001 final Commission report COM(1998)700 final Commission report COM(1999)505 final Commission report COM(2000) 705 final Commission report COM(2001) 700 final - SEC(2001) 1748 2) CONTENTS In its Opinion of July 1997, the Commission considered that in the field of justice and home affairs the necessary structures had been created but that it was difficult to assess their impact and effectiveness. Hungary was well placed to conform to the rules imposed by the European Union in the next few years, as long as the momentum of progress was maintained and effective training and institutional development programmes were implemented in the major justice and home affairs institutions. In addition, the Commission stressed that priority should be given to effective border management including a visa system increasingly modelled on that of the European Union and an asylum policy without geographical reservations and with sufficient resources. The November 1998 Report noted that Hungary was capable of making progress towards enactment of the Community acquis in this area and, in particular, of focusing its efforts on the two major deficiencies affecting the short-term priorities of the Accession Partnership identified in the July 1997 Opinion: border management and an asylum policy with no geographical limits. The October 1999 Report found that Hungary had made some progress in the area of justice and home affairs, particularly as regards police matters and the fight against corruption, with more measured progress on immigration, drugs and justice. However, no real improvement could be reported on border control or asylum. In its November 2000 report, the Commission noted that some progress had been made as regards visas, border control, immigration policy and the right to asylum. No significant progress had been made with regard to bringing judicial cooperation into line with the acquis. In its November 2001 Report, the Commission notes that significant progress has been achieved in Hungary in numerous fields such as visa policy, migration, asylum, judicial cooperation and the fight against organised crime. COMMUNITY ACQUIS 1. Free movement of persons The principle of free movement and residence for all European citizens is laid down in Article 14 (formerly Article 7a) of the Treaty and in the provisions on Union citizenship (Article
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18, formerly Article 8a). The Maastricht Treaty placed asylum policy, the crossing of the Union's external borders and immigration policy among the matters of common interest to the Member States. The Treaty of Amsterdam, which entered into force on 1 May 1999, included these issues in the EC Treaty (Articles 61 to 69) while allowing a transitional period of five years before the Community procedures would apply in their entirety. At the end of this period there should be an "area of freedom, security and justice" without checks on people, regardless of their nationality, at internal borders. At the same time, common standards are to be put in place for checks at the Union's external borders , for visas, and for asylum and immigration policies. The Council and Commission action plan of 3 December 1998 sets a timetable for the measures to be adopted so that these objectives can be achieved in the next five years. Some Member States are already applying the common rules in these areas as a result of the Schengen agreements, the first of which was signed in 1985. These intergovernmental agreements were incorporated into the European Union framework following the entry into force of the Treaty of Amsterdam and are now part of the Community acquis to be adopted by the applicant countries. Hungary has declared its readiness to fulfil the provisions of the Schengen Agreement and has requested institutional and technical assistance, notably in regard to the strengthening of border controls, an area where improvement and modernisation absorb considerable financial resources. Asylum policy European asylum policy, a matter of common interest for the Member States ever since the Treaty of Maastricht, is based essentially on instruments with no legal force, e.g. the London Resolutions of 1992 on manifestly unfounded applications for asylum and the principle of "host third countries", or on international agreements such as the Geneva Convention of 1951 on the status of refugees. Within the framework of the Schengen agreements, the Member States signed on 15 June 1990 the Dublin Convention on determining the State responsible for examining an asylum application presented in one of the Member States of the Union. The Convention came into force on 1 September 1997. This issue had not been settled by the Geneva Convention. Various implementing measures were then adopted by the committee set up by the Convention. A comprehensive strategy going beyond the Commission and Council action plan of 3 December 1998 is needed. A task force on asylum and migration has therefore been set up by the Council to meet this need. Immigration policy Immigration, also a matter of common interest for the Member States since the Treaty of Maastricht, comes under intergovernmental cooperation in domestic affairs, and there is still no real European immigration policy. No rules have been formulated for nationals of third countries entering and residing in the EU. However, the action plan of 3 December 1998 does provide for the adoption of specific measures in this area. Judicial cooperation in civil matters
Few measures have been adopted in this area, in which the EU has been empowered to act since the Maastricht Treaty. The most important measure to date is the Convention on the service of documents in civil or commercial matters in the EU. Following the entry into force of the Amsterdam Treaty, this Convention is the subject of a proposal for a regulation . The main instruments facilitating judicial cooperation in civil matters have been drawn up at international level (for example, Brussels Convention and Rome Convention). A list of medium-term (two years) and more long-term (five years) objectives and a list of measures to be adopted to implement them were included in the Council and Commission action plan of December 1998. 2. Police, customs and judicial cooperation in criminal matters The acquis in these areas derives principally from the framework for cooperation set out in Title VI of the Treaty on European Union, "the third pillar". The Treaty of Amsterdam having amended the legal provisions, Title VI now mainly covers police cooperation , the fight against organised crime, the fight against drug trafficking, the fight against corruption and fraud, judicial cooperation in criminal matters and customs cooperation. It retains the same intergovernmental procedures that were laid down by the Maastricht Treaty in 1993. The acquis in justice and home affairs involves a high degree of practical cooperation between government departments, the drafting of legislation and its implementation in practice. To this end, a first programme, Octopus, was financed between 1996 and 1998 by the Commission and the Council of Europe. Octopus II (1999-2000) is aimed at facilitating the adoption of new legislative and constitutional measures by the countries of central and eastern Europe and by some of the newly independent countries on the model of the rules in force in the EU, by providing training and assistance to all those responsible for combating corruption and organised crime. Furthermore, a pact on the fight against organised crime was signed on 28 May 1998 between the EU and the CEECs. Within the Union, the Council and Commission action plan of 3 December 1998 indicates the various measures which will have to be adopted in the short term (two years) and the medium term (five years) in order to create a genuine area of freedom, security and justice. These measures will include the development of the European Police Office (Europol), particularly the organisation of relations between the Office and the Member States' judicial authorities, the incorporation of the Schengen acquis on police and customs cooperation and the organisation of collecting and storing the necessary information on cross-border crime. 3. The Europe Agreement and the White Paper on the countries of central and eastern Europe and the internal market The Europe Agreement with Hungary includes provision for cooperation in the fight against drug abuse and money laundering. The White Paper does not deal directly with third-pillar subjects, but reference is made to money laundering and freedom of movement of persons, which are closely related to justice and home affairs considerations. EVALUATION
In the area of personal data protection, a National Supervisory Body has been set up for the activities of NEBEK (the counterpart authority for Europol). New visa obligations have been introduced for Belarus, Bosnia-Herzegovina, Moldova, FYROM and Russia. However, Hungary must continue its efforts as regards visa requirements and exemption. A new law on the uniform visa format was adopted in May 2001. A strategy on the integrated development of border crossing points was adopted in January 2001. It provides for the participation of all bodies concerned by external border controls, inter alia the Border Guard and the Customs and Finance Guard During 2001 the Border Guard received: new equipment (infrared surveillance equipment, criminal investigation devices etc.); and language courses and specific training. In May 2001, the Hungarian Parliament adopted a law distinguishing between internal and external borders in line with the Schengen requirements. Hungary must make further efforts to combat illegal crossborder traffic, particularly on the borders with Ukraine, Croatia and the FRY. As far as immigration policy is concerned, a new Aliens Entry and Residence Act was adopted in May 2001. The new law introduces a unified residence permit and simplifies expulsion rules. Readmission agreements have been concluded with Albania and Portugal. Hungary is a target country for asylum seekers from Afghanistan, Iran and Bangladesh. In May 2001, the new Asylum Act brought Hungary into line with the Schengen acquis as regards the definition of unaccompanied minors. Further efforts are needed to promote the social integration of refugees. Hungary has continued to develop police cooperation with its neighbouring countries and the EU Member States. A cooperation agreement with Europol was signed in October 2001. Hungary established a body responsible for coordinating the fight against organised crime under the supervision of the Minister of Interior in April 2001. Its brief is to collect, analyse and process information relating to organised crime, to coordinate investigations and to prevent duplication between the various departments involved. Further progress has been made in the fight against fraud, corruption and money laundering. The Criminal Code has been amended to introduce new provisions on the criminal liability of company heads and to make bribery of foreign public officials a punishable offence. In November 2000, Hungary ratified the Council of Europe Criminal Law Convention on Corruption. Further efforts are needed on money laundering, particularly by adopting measures enabling identification and reporting requirements with respect to beneficial ownership of anonymous accounts. Various activities have been carried out with a view to preventing corruption: new work programme for the staff of anti-corruption agencies; creation of a specialised mobile unit to detect police corruption; staff training activities. Regarding drugs, in December 2001 the Hungarian Parliament adopted a new comprehensive strategy which provides for long-term measures (strengthening the criminal law), as well as prevention and social action to address drug-related problems. In the area of customs cooperation, Hungary has concluded bilateral mutual assistance agreements with a number of Member States. Further efforts are needed so that Hungary can sign the Customs Information System Convention.
Judicial cooperation must continue so that Hungary can join the European Judicial Network and Eurojust. Provisions on international private law were adopted in 2000 in accordance with the Brussels Convention in the areas of jurisdiction, mutual recognition and enforcement of judgements. All human rights conventions (which form part of JHA acquis) have been ratified.
CASE STUDY II Bulgaria136 1) REFERENCES Commission Opinion COM(1997) 2008 final Commission Report COM(1998) 707 final Commission Report COM(1999) 501 final Commission Report COM(2000) 701 final Commission Report COM(2001) 700 final - SEC(2001) 1744 2) CONTENTS In its Opinion of July 1997, the Commission stressed that Bulgaria would have to make major efforts to conform to the European Union's rules in all sectors. In particular, it would have to introduce reforms regarding the right of asylum for foreign nationals, border checks, the fight against organised crime and drug trafficking. In the November 1998 Report, it recognised the progress made by Bulgaria, but asked it to pursue these efforts with the utmost rigour; with regard to medium-term objectives, legislative and administrative actions would be needed. The October 1999 Report noted that Bulgaria had made significant progress in the area of justice and home affairs, especially by strengthening the legislative framework in most sectors in this field. The most significant progress was noted in immigration and justice. On the other hand little progress had been made in the fight against corruption. In the November 2000 Report, the Commission noted that progress had been made with regard to the approximation of legislation and the drafting of new laws in line with the acquis. However, further efforts were needed to modernise equipment and to guarantee additional training for the police forces. In the November 2001 Report the Commission notes that Bulgaria has made substantial progress in bringing its legislation into line with Community law as regards visas, immigration, border controls, judicial cooperation and customs cooperation. However, further efforts are needed to strengthen administrative capacity. COMMUNITY ACQUIS 1. Free movement of persons The principle of free movement and residence of all European citizens is laid down in Article 14 (ex-Article 7a) of the Treaty and in the provisions on Union citizenship (Article 18, ex-Article 8a). The Maastricht Treaty placed asylum policy, the crossing of the Union's external borders and immigration policy among the matters of common interest to the Member States. The Treaty of Amsterdam, which entered into force on 1 May 1999, included these issues in the EC Treaty (Articles 61 to 69) while allowing a transitional period of five years before the Community procedures would apply in their entirety. At the end of this period there should be "an area of freedom, security and justice" without checks on people, regardless of their
nationality, at internal borders. At the same time, common standards must be put in place for checks at the Union's external borders , for visas, and for asylum and immigration policies. The Council and Commission action plan of 3 December 1998 sets a timetable for the measures to be adopted to reach these objectives in the next five years. Some Member States are already applying the common rules in these areas as a result of the Schengen agreements, the first of which was signed in 1985. These intergovernmental agreements were incorporated into the European Union framework following the entry into force of the Treaty of Amsterdam and are now part of the Community acquis to be adopted by the applicant countries. In 1997 Bulgaria declared its intention to comply with the provisions of the Schengen agreements. It has begun preparations to this end and has sought assistance in this connection from the Member States, notably in regard to the strengthening of border controls. Asylum policy European asylum policy, a matter of common interest for the Member States ever since the Treaty of Maastricht, is based essentially on instruments with no legal weight, e.g. the London Resolutions of 1992 on manifestly unfounded applications for asylum and the principle of "host third countries", or on international conventions such as the Geneva Convention of 1951 on the status of refugees. Within the framework of the Schengen agreements, the Member States signed on 15 June 1990 the Dublin Convention on determining the State responsible for examining an asylum application presented in one of the Member States of the Union. The Convention came into force on 1 September 1997. This issue had not been settled by the Geneva Convention. Various implementing measures were then adopted by the committee set up by the Convention. A comprehensive strategy going beyond the Commission and Council action plan of 3 December 1998 is needed. A task force on asylum and migration has therefore been set up by the Council to meet this need. Immigration policy Immigration, also a matter of common interest for the Member States ever since the Treaty of Maastricht, comes under intergovernmental cooperation in domestic affairs, and there is still no real European immigration policy. No regulations rules have been formulated for nationals of third countries entering and residing in the EU. However, the action plan of 3 December 1998 does provide for the adoption of specific measures in this area. Judicial cooperation in civil matters Few measures have been adopted in this area, in which the EU has been able to act since the Maastricht Treaty. The most important to date is the Convention on the service of documents in civil or commercial matters in the EU. Following the entry into force of the Treaty of Amsterdam, this Convention is currently subject to a proposal for a regulation . The main instruments facilitating civil judicial cooperation have been drawn up at international level (Brussels Convention and Rome Convention , for example).
In December 1998, the action plan of the Council and the Commission established a list of objectives to achieve in the medium term (two years) and the longer term (five years) and the list of measures to be adopted.
2. Police, customs and judicial cooperation in criminal matters The acquis in these areas derives principally from the framework for cooperation set out in Title VI of the Treaty on European Union, "the third pillar". The Treaty of Amsterdam amended the legal provisions on this. Title VI now mainly covers police cooperation, the fight against organised crime, the fight against drug trafficking, the fight against corruption and fraud, judicial cooperation in criminal matters and customs cooperation. It retains the same intergovernmental procedures that were laid down by the Maastricht Treaty in 1993. The acquis in justice and home affairs involves a high degree of practical cooperation between government departments, the drafting of legislation and its implementation in practice. To this end, a first programme, Octopus, was financed between 1996 and 1998 by the Commission and the Council of Europe. Octopus II (1999-2000) is aimed at facilitating the adoption of new legislative and consitutional measures by the countries of central and eastern Europe and by some of the Newly Independent Countries on the model of the rules in force in the EU by providing training and assistance to all those responsible for combating corruption and organised crime. Furthermore, a pact on the fight against organised crime was signed on 28 May 1998 between the EU and the CEECs. Within the Union, the Council and Commission action plan of 3 December 1998 indicates the various measures which will have to be adopted in the short term (two years) and the medium term (five years) in order to create a genuine area of freedom, security and justice. Notable among them is the development of the European Police Office (Europol), particularly the organisation of relations between the Office and the Member States' judicial authorities, the incorporation of the Schengen acquis on police and customs cooperation and the organisation of collecting and storing the necessary information on cross-border crime. 3. The Europe Agreement and the White Paper on the countries of central and eastern Europe and the internal market The Europe Agreement with Bulgaria includes provision for cooperation in the fight against drug abuse and money laundering. The White Paper does not deal directly with third-pillar subjects, but reference is made to first-pillar matters such as money laundering and freedom of movement of persons, which are closely related to justice and home affairs considerations. EVALUATION A bill on data protection has been laid before the Bulgarian Parliament. The Commission notes that visa policy has been largely brought into line with Community law. Accordingly, since 10 April 2001 Bulgaria has enjoyed visa-free entry to the Schengen Member States. In addition, the visa classification system is in line with the Schengen
classification. With a view to reducing misuse and falsification, an automated fingerprint identification system has been introduced, as has a database showing all visas issued by the visa centre. In the area of border controls, demilitarisation of the border police has continued. A specialised border police training centre was established in October 2000. In the area of immigration policy, important amendments entered into force in 2000 (family reunification, marriages of convenience, admission of self-employed persons). Bulgaria has signed readmission agreements with Ukraine, Croatia, FYROM and the Federal Republic of Yugoslavia. A human trafficking task force was established by the Ministry of the Interior in May 2001. With regard to asylum policy, a working group has been formed to ensure full compliance of the Refugees Act with the 1951 Geneva Convention and the acquis. In any event, the relevant Bulgarian legislation has now largely been brought into line with Community law. Little progress has been made in the areas of police cooperation, the struggle against organised crime and the struggle against fraud and corruption. Administrative capacity needs to be boosted. At present, the Bulgarian police, which is suspected of corruption and accused of lacking transparency, still has a bad reputation with the local population. Some progress has been observed on drugs, but the legislation is still by no means fully harmonised with the acquis. With regard to money laundering, a bureau of financial intelligence has been established which collects, analyses and reveals information related to money laundering activity. In July 2001 Bulgaria adopted a new strategy for rationalising border operations performed by the customs authorities. It also concluded bilateral customs co-operation agreements with the USA, Slovenia, Slovakia and the Czech Republic.
CASE STUDY III Romania137 1) REFERENCES Commission Opinion COM(1997) 2003 final Commission report COM(1998) 702 final Commission report COM(1999) 510 final Commission report COM(2000) 710 final Commission report COM(2001) 700 final - SEC(2001) 1753 2) CONTENTS In its July 1997 Opinion the European Commission found that Romania had particular problems in the area of justice and home affairs, particularly as regards supervision and control of enforcement agencies and the fight against organised crime and drugs. Little had been done to tackle issues such as immigration policy, issuing of visas and border control. In view of the limited progress, it would be difficult for Romania to comply with Community rules in the medium term and progress in this field would depend on far-reaching, out-and-out reform of the institutions. The November 1998 Report noted the lack of any real progress in the fight against corruption and organised crime and with respect to border controls, although this was one of the short-term priorities of the accession partnership. Some progress had been made with respect to visas and readmission policy, and international legal instruments had been signed, ratified or had come into force, but other European conventions such as those on mutual assistance in criminal matters and money laundering had yet to be ratified. In its October 1999 Report the Commission made a more positive assessment of progress in the field of justice and home affairs, with the exceptions of asylum and the fight against drugs. The most significant progress was in the field of justice but some progress had also been made on immigration, border management and the police. However, the administration - and in particular the Ministry of the Interior - needed to be restructured. There was a widespread need for working conditions to be improved in the various sectors of justice and home affairs, and visa policy had to be implemented more effectively. In its November 2000 Report the Commission noted that less progress had been made than in the previous year. Some new measures had been introduced regarding asylum, visas and money laundering. However, in other areas, e.g. border control and the circumstances of foreigners, steps to bring Romania more into line with the acquis had yet to be taken. Romania was invited to continue to reform police administration and to combat corruption, which remained a serious problem. In its November 2001 Report, the Commission notes that remarkable progress has been made in visa policy, border controls and immigration. A great deal remains to be done as regards police cooperation and the fight against fraud and corruption. COMMUNITY ACQUIS
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1. Free movement of persons The principle of free movement and residence of all European citizens is laid down in Article 14 (formerly Article 7a) of the Treaty and in the provisions on Union citizenship (Article 18, formerly Article 8a). The Maastricht Treaty placed asylum policy, the crossing of the Union's external borders and immigration policy among the matters of common interest to the Member States. The Treaty of Amsterdam, which entered into force on 1 May 1999, included these issues in the EC Treaty (Articles 61 to 69) while allowing a transitional period of five years before the Community procedures would apply in their entirety. At the end of this period there should be "an area of freedom, security and justice" without checks on people, regardless of their nationality, at internal borders. At the same time, common standards must be put in place for checks at the Union's external borders , for visas and for asylum and immigration policies. The Council and Commission action plan of 3 December 1998 sets a timetable for the measures to be adopted to reach these objectives in the next five years. This timetable was set out in the March 2000 scoreboard. Some Member States are already applying the common rules in these areas as a result of the Schengen agreements, the first of which was signed in 1985. These intergovernmental agreements were incorporated into the European Union framework following the entry into force of the Treaty of Amsterdam and are now part of the Community acquis to be adopted by the applicant countries. Asylum policy European asylum policy, a matter of common interest for the Member States ever since the Treaty of Maastricht, is based essentially on instruments with no legal force, e.g. the London Resolutions of 1992 on manifestly unfounded applications for asylum and the principle of "host third countries", or on international conventions such as the Geneva Convention of 1951 on the status of refugees. Within the framework of the Schengen agreements, the Member States signed on 15 June 1990 the Dublin Convention on determining the State responsible for examining an asylum application presented in one of the Member States of the Union. The Convention came into force on 1 September 1997. This issue had not been settled by the Geneva Convention. Various implementing measures were then adopted by the committee set up by the Convention. A comprehensive strategy going beyond the Commission and Council action plan of 3 December 1998 is needed. A task force on asylum and migration has therefore been set up by the Council to meet this need. Immigration policy Immigration, also a matter of common interest for the Member States ever since the Treaty of Maastricht, comes under intergovernmental cooperation in domestic affairs, and there is still no real European immigration policy. No rules have been formulated for nationals of third countries entering and residing in the EU. However, the action plan of 3 December 1998 does provide for the adoption of specific measures in this area. Judicial cooperation in civil matters
Few measures have been adopted in this area, in which the EU has been able to act since the Maastricht Treaty. The most important to date is the Convention on the service of documents in civil or commercial matters in the EU. The main instruments facilitating civil judicial cooperation have been drawn up at international level (Brussels Convention and Rome Convention, for example). The adoption of new rules is also provided for in the Council and Commission action plan of 3 December 1998. 2. Police, customs and judicial cooperation in criminal matters The acquis in these areas derives principally from the framework for cooperation set out in Title VI of the Treaty on European Union, "the third pillar". The Treaty of Amsterdam amended the legal provisions on this. Title VI now mainly covers police cooperation , the fight against organised crime, the fight against drug trafficking, the fight against corruption and fraud, judicial cooperation in criminal matters and customs cooperation. It retains the same intergovernmental procedures that were laid down by the Maastricht Treaty in 1993. The acquis in justice and home affairs involves a high degree of practical cooperation between government departments, the drafting of legislation and its implementation in practice. To this end, a first programme, Octopus, was financed between 1996 and 1998 by the Commission and the Council of Europe. Octopus II (1999-2000) is aimed at facilitating the adoption of new legislative and constitutional measures by the countries of central and eastern Europe and by some of the newly independent countries on the model of the rules in force in the EU by providing training and assistance to all those responsible for combating corruption and organised crime. Furthermore, a pact on the fight against organised crime was signed on 28 May 1998 between the EU and the CEECs. Within the Union, the Council and Commission action plan of 3 December 1998 indicates the various measures which will have to be adopted in the short term (two years) and the medium term (five years) in order to create a genuine area of freedom, security and justice. Notable among them is the development of the European Police Office (Europol), particularly the organisation of relations between the Office and the Member States' judicial authorities, the incorporation of the Schengen acquis on police and customs cooperation and the organisation of collecting and storing the necessary information on cross-border crime. 3. The Europe Agreement and the White Paper on the countries of central and eastern Europe and the internal market The Europe Agreement with Romania includes provision for cooperation in the fight against drug abuse and money laundering. The White Paper does not deal directly with third-pillar subjects, but reference is made to first-pillar matters such as money laundering and freedom of movement of persons which are closely related to justice and home affairs considerations. EVALUATION As regards data protection, no progress of note has been made.
However, considerable progress has been made on visa policy. At present, visa requirements apply to 156 countries. In April 2001 Romania amended the Aliens Act and introduced provisions on visas, which must now be obtained from a Romanian consulate or embassy and are issued at the border only in exceptional cases. The national visa centre receives all visa applications and takes the final decision. The Aliens Directorate carries out additional checks on applications from countries with high levels of migration. Major progress has been made on controls at external borders. Two emergency ordinances were adopted in June 2001: the first on Romania's borders; the second on the organisation and functioning of the border police (it provides for a new structure and a framework for cooperation between the border police and other bodies). With regard to human resources, the hierarchical structure has been simplified, regional directorates trimmed and some administrative employees now have to carry out operational tasks. The Commission has welcomed the adoption of important measures to combat police corruption. Lastly, the border police has signed an agreement with the national airline, TAROM, with a view to improving checks on travel documents and visas. Further efforts are needed to bring Romania into line with the Schengen acquis. In the area of immigration policy, Romania has concluded a number of readmission agreements with the Member States (with the exception of the United Kingdom and Portugal) and with certain applicant countries (Poland, Slovakia, Czech Republic, Slovenia, etc.). The new Aliens Act, which was adopted in May 2001, contains provisions on entry and residence and rules governing expulsion. An agreement has also been signed with the IOM to set up a temporary refuge for female victims of trafficking in human beings. In the asylum field, the 1996 Refugees Act has been amended to introduce new concepts such as "manifestly unfounded application", "safe third country", "country of origin" and "accelerated procedure". Persons with refugee status in Romania receive financial assistance for nine months. Provision is also made for additional aid for certain categories of person, such as unaccompanied minors or single mothers. As a general rule, refugees have the same rights as Romanian citizens, including access to the labour market. With regard to police cooperation and the fight against organised crime, the police has been restructured and a directorate has been set up to combat organised crime and drugs. Police personnel have undergone training, especially in human rights. The Commission has invited Romania to continue its efforts with a view to launching talks on accession to Europol. A department responsible for combating corruption and organised crime was set up under the aegis of the public prosecutor's office in October 2000. However, Romania still has to bring its law into line with the 1995 Convention on the protection of the European Communities' financial interests. A drugs squad was set up in March 2001. From the legislative perspective, Romania has acceded to all the international conventions referred to in Community drugs law. The criminal code and the code of criminal procedure have been amended in respect of money laundering. Although Romanian law in this area has been largely brought into line with the acquis, the Commission has suggested introducing specific training for police officers and public prosecutors dealing with money laundering.
An anti-fraud department was set up in January 2001 for the purposes of customs cooperation. A national database has also been established in accordance with the requirements of the CIS Convention. Although Romania has ratified most of the international conventions incorporated into Community law as regards judicial cooperation, it still has to ratify the following: the 1965 Hague Convention on the Service of Documents; the 1970 Hague Convention on the Taking of Evidence Abroad; the 1980 Hague Convention on International Access to Justice; the European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children. Romania has ratified all legal instruments concerning human rights as part of the JHA acquis (with the exception of the 1981 Council of Europe Convention for the protection of individuals with regard to automatic processing of personal data).
CASE STUDY IV Turkey138 1) REFERENCES Commission Report COM(1998)711 final Commission Report COM(1999)513 final Commission Report COM(2000)713 final Commission Report COM(2001) 700 final - SEC(2001) 1756 2) CONTENTS In its November 1998 Report, the Commission states that EC-Turkey Association Council resolutions dated 6 March 1995 and 30 October 1995 provided for cooperation between the European Union and Turkey on certain issues falling under the heading of justice and home affairs. Political considerations meant that these arrangements remained in abeyance until 1998. The European strategy stressed the importance of implementing these two resolutions. On 25 June 1998, a meeting was held in Brussels between the specialised Council committee and the Turkish authorities, a number of topics relating to justice and home affairs were covered. The Commission stressed the need to develop active cooperation with Turkey on immigration. In its November 1999 Report, the Commission stressed that despite some improvements, progress still needed to be made, particularly on immigration and asylum (conclusion of readmission agreements, lifting the geographical reservation to the 1951 Geneva Convention), border controls (merging the various departments responsible for border control), the fight against organised crime (stepping up the fight against the trafficking of human beings) and drug trafficking (increased cooperation with the Member States). A number of international agreements on judicial cooperation in civil and criminal law still needed to be ratified. In its November 2000 Report, the Commission noted that Turkey had made no significant progress in the field of justice and home affairs. Turkey still needed to make efforts to bring itself into line with Community law in areas such as the fight against fraud and corruption, the fight against drugs and measures to promote customs and judicial cooperation. In its November 2001 Report, the Commission notes that Turkey has made some progress in the field of justice and home affairs. COMMUNITY ACQUIS 1. Free movement of persons The principle of free movement and residence of all European citizens is laid down in Article 14 (formerly Article 7a) of the Treaty and in the provisions on Union
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citizenship (Article 18, formerly Article 8a). The Maastricht Treaty placed asylum policy, the crossing of the Union's external borders and immigration policy among the matters of common interest to the Member States. The Treaty of Amsterdam, which entered into force on 1 May 1999, included these issues in the EC Treaty (Articles 61 to 69) while allowing a transitional period of five years before the Community procedures would apply in their entirety. At the end of this period there should be "an area of freedom, security and justice" without checks on people, regardless of their nationality, at internal borders. At the same time, common standards must be put in place for checks at the Union's external borders, for visas, and for asylum and immigration policies. The Council and Commission action plan of 3 December 1998 sets a timetable for the measures to be adopted to reach these objectives in the next five years. Some Member States are already applying the common rules in these areas as a result of the Schengen agreements, the first of which was signed in 1985. These intergovernmental agreements were incorporated into the European Union framework following the entry into force of the Treaty of Amsterdam and are now part of the Community acquis to be adopted by the applicant countries. Asylum policy European asylum policy, a matter of common interest for the Member States ever since the Treaty of Maastricht, is based essentially on instruments with no legal weight, e.g. the London Resolutions of 1992 on manifestly unfounded applications for asylum and the principle of "host third countries", or on international conventions such as the Geneva Convention of 1951 on the status of refugees. Within the framework of the Schengen agreements, the Member States signed on 15 June 1990 the Dublin Convention on determining the State responsible for examining an asylum application presented in one of the Member States of the Union. The Convention came into force on 1 September 1997. This issue had not been settled by the Geneva Convention. Various implementing measures were then adopted by the committee set up by the Convention. A comprehensive strategy going beyond the Commission and Council action plan of 3 December 1998 is needed. A task force on asylum and migration has therefore been set up by the Council to meet this need. Immigration policy Immigration, also a matter of common interest for the Member States ever since the Treaty of Maastricht, comes under intergovernmental cooperation in domestic affairs, and there is still no real European immigration policy. No regulations rules have been formulated for nationals of third countries entering and residing in the EU. However, the action plan of 3 December 1998 does provide for the adoption of specific measures in this area. Judicial cooperation in civil matters
Few measures have been adopted in this area, in which the EU has been able to act since the Maastricht Treaty. The most important to date is the Convention on the service of documents in civil or commercial matters in the EU. The main instruments facilitating civil judicial cooperation have been drawn up at international level (Brussels Convention and Rome Convention, for example). The adoption of new rules is also provided for in the Council and Commission action plan of 3 December 1998. 2. Police, customs and judicial cooperation in criminal matters The acquis in these areas derives principally from the framework for cooperation set out in Title VI of the Treaty on European Union, "the third pillar". The Treaty of Amsterdam amended the legal provisions on this. Title VI now mainly covers police cooperation, the fight against organised crime, the fight against drug trafficking, the fight against corruption and fraud, judicial cooperation in criminal matters and customs cooperation . It retains the same intergovernmental procedures that were laid down by the Maastricht Treaty in 1993. The acquis in justice and home affairs involves a high degree of practical cooperation between government departments, the drafting of legislation and its implementation in practice. To this end, a first programme, Octopus, was financed between 1996 and 1998 by the Commission and the Council of Europe. Octopus II (1999-2000) is aimed at facilitating the adoption of new legislative and constitutional measures by the countries of central and eastern Europe and by some of the Newly Independent Countries on the model of the rules in force in the EU by providing training and assistance to all those responsible for combating corruption and organised crime. Furthermore, a pact on the fight against organised crime was signed on 28 May 1998 between the EU and the CEECs. Within the Union, the Council and Commission action plan of 3 December 1998 indicates the various measures which will have to be adopted in the short term (two years) and the medium term (five years) in order to create a genuine area of freedom, security and justice. Notable among them is the development of the European Police Office (Europol), particularly the organisation of relations between the Office and the Member States' judicial authorities, the incorporation of the Schengen acquis on police and customs cooperation and the organisation of collecting and storing the necessary information on cross-border crime. 3. The Association Agreement and the European strategy for Turkey The Association Agreement between the Community and Turkey and the 1970 Additional Protocol set out the basic objectives of the association, which include the establishment of a customs union in three stages. The completion of the customs union on 31 December 1995, under Decision 1/95 of the Association Council, made it necessary to incorporate a large part of the Community acquis, notably in all fields connected with the operation of the customs union (customs, commercial policy, competition and protection of intellectual, industrial and commercial property). In other fields the Community acquis is transposed by implementing the European strategy proposals.
The European strategy for Turkey (adopted by the Communication of 4 March 1998) provides for greater cooperation and approximation of the legislation in certain fields of Community law. It contains the first operational proposals in this respect. This strategy was welcomed by the Cardiff European Council, which invited the Commission to apply it and to present the proposals needed for its effective implementation. The European strategy includes justice and home affairs. EVALUATION No progress has been made in the field of data protection. Some progress has been made with regard to visa policy. Nevertheless Turkey has not set objectives or a definite timetable. Turkey has introduced an airport transit visa for countries from which illegal immigrants come. Progress has been made with regard to cooperation and coordination of the various bodies involved in the control of external borders. New border posts have been set up and sea patrols have been introduced. Nevertheless, the Commission has asked Turkey to adopt a strategy to control and manage borders as well as modernising equipment. No further alignment with the Schengen acquis has taken place. Bilateral negotiations on immigration have been started with several countries. The Ministry for the Interior has organised training courses on how to detect false documents. However, the Commission is very concerned by the increase in illegal migratory flows in Turkey. Legislation with a view to participation in the SIS (Schengen Information System) is being drafted. Turkey is a still a country of destination and transit for trafficking in human beings and its legislation falls short of the necessary minimum rules to eliminate this illegality. Turkey must still ratify the United Nations Convention of 2000 against organised transnational crime including the protocols on the trafficking of persons and smuggling of migrants. On asylum, Turkey has confirmed that it wishes to withdraw the geographical reservation to the 1951 Geneva Convention. Generally speaking asylum legislation must be reviewed as it is a source of concern. In addition the number of reception centres for refugees is inadequate. In July 2001 a cooperation agreement to fight crime came into force between Greece and Turkey. Progress has been made in police cooperation but it needs to go further to enable Turkey to join Europol and become part of the SIS (Schengen Information System). In September 2001 Turkey signed the 1999 Council of Europe conventions on civil law and criminal law against corruption. The Ministry of the Interior set up a central department to fight smuggling. No progress has been made in the fight against fraud. Turkey has yet to align its legislation with the acquis in connection with the fight against fraud against the Communities' financial interests. Several drug trafficking organisations have been discovered. The Ministry of the Interior has set up a special centre to prepare drafts relating to the fight against drugs. The Commission calls on Turkey to develop cooperation with other countries because it is at the hub of drug dealings between producer countries and consumer countries. It should
also introduce a national strategy to fight drug trafficking in conformity with the strategy adopted by the European Union for the period 2000-2004. With regard to money laundering, the 1990 Convention of the Council of Europe was signed in September 2001. Turkey should continue to strive to align legislation with the Union acquis. No progress has been made with regard to judicial cooperation in civil and criminal matters. Turkey should make judges more independent and impartial. It should speed up the adoption of the civil code, the code of civil procedure, the criminal code and the code of criminal procedure. With regard to administrative capacity, the Ministry of the Interior has set up a division responsible for identification and a division for investigation on the scene of the crime. In May 2001, a rapid warning system was introduced for border management. In May 2001, the Ministry of Justice was restructured. By 2004, a national judicial network should link all the courts, prisons and a number of ministerial departments.
Members of VC Expert Group 1. Prof. Vojin Dimitrijević Ph. D. - mentor and consultant 2. Igor Bandović - Group coordinator 3. Anđelka Marković - researcher 4. Vladimir Pejčić - researcher 5. Bojan Đurić - researcher