Special court department for SPO cases would be legal and legitimate

After Basic Court Skopje 1 denied requests by the Special Prosecutors Office (SPO) to detain suspects in the “Titanic” case, there was public debate as to whether it is necessary to form a special court for SPO cases. Some judges reacted by claiming this is unconstitutional, citing article 98 of the Constitution which clearly stipulates that “emergency courts are prohibited”

The dilemma at present is whether, with respect to current laws, a special court can be formed which would not be unlawful and unconstitutional and could act on cases initiated by the SPO and chief special prosecutor Katica Janeva.

This possibility was indicated by professors well versed in judicial regulations. On her Facebook page, professor Mirjana Najchevska recently posed the issue of opening a specialised department of the Criminal Court.

“Articles 12 and 23 of the Law on Courts provide for the possibility of opening specialised departments for specific court cases. I see no reason why such a department could not be established to address cases within the purview of the Special Prosecutors Office. This is quite legal and quite simple. Articles 32 and 122 have provided for the establishment of an organised crime department, have they not? Article 88 stipulates such departments shall have presidents and deputies. This would not be some emergency court but a specialised department with appointed judges,” Najchevska wrote.

Provisions in the Law on Courts

Article 12 of the Law on Courts specifically addresses specialised court departments.

(1) By right, court work is performed in specialised court departments.

(2) Specialised court departments are formed depending on the type and volume of court work, in the sphere of criminal law, junior delinquency, civil and commercial sphere, labour cases and other specific cases in the courts’ purview.

(3) The specialised court departments allow for the specialisation of judges.

In terms of court organisation, article 23 paragraph 3 of this Law stipulates:

(3) Specialised court departments acting on special types of cases are compulsory within basic courts with extended authorities.

In terms of the courts’ purview, article 32 paragraph 1 stipulates:

(1) Specialised court department shall be formed within Basic Court Skopje 1 in Skopje with the purview of judging organised crime and corruption cases on the territory of the Republic of Macedonia…

In terms of court administration, article 88 paragraph 5 stipulates that specialised court departments shall have presidents and deputies.

The yearly work schedule designates presidents of specialised court departments and their deputies, and presidents of court departments and court councils.

Experts in agreement

Like Najchevska, professor Mersim Maksuti indicated provisions in the Law on Courts which provide for the existence of specialised departments within courts in a statement for Alsat-M.

“The quickest solution would be to form a separate department within Criminal Court Skopje 1 which would be tasked with the SPO cases. The Department would be composed of judges appointed on the same principle as the team of the Special Prosecutor,” said Maksuti.

Criminal law professor Gordan Kalajdziev said he was not aware of these provisions in the Law on Courts but believes the formation of a specialised department could be looked into.

“The problem here is that the issue of a specialised court for the cases of the special prosecution was not raised when the SPO was formed with the political agreement of the four biggest parties. I don’t believe someone did not think of this, yet nothing was said. With regards to the articles from the Law on Courts that professor Najchevska cited, I think they are worth considering. I don’t believe a special department for cases from the Special Prosecutors Office was envisaged when they were written, as it did not exist at the time,” Kalajdziev said.

He thinks it is vital how the articles of the Law are interpreted and who is doing the interpreting.

Furthermore, who should form this special department? There is better basis for this in theory than for the formation of a special court.

Special judges were prepared for the Hague cases

In 2006, when Mihajlo Manevski was minister of justice in the Macedonian government, special judges were educated and trained before taking over and judging four cases of war crimes committed by members of the former UCK from the Hague Tribunal (the so-called ‘Hague cases’).

As the media reported at the time, the Ministry of Justice selected six judges to be trained to process the four Hague cases. Unofficial information suggested the six judges would be headed by Filimena Manevska, Appellate Court judge and wife of minister Manevski.

Unofficial information suggested a special courtroom was prepared for these cases.

“€200,000 are already provided by the European Agency for Reconstruction for modern IT equipment, while construction works and office furniture will be financed by the USAID project for judicial reform. The courtroom will be built according to European standards and will provide conditions to process cases of the highest order, such as war crimes, organised crime and the like, allowing witness protection if required,” said the daily Vecher.

The Hague cases were not processed in the Macedonian courts at all as the Assembly voted for their amnesty.

Sources

• 24 Вести (20.02.2016) Нема притвор за ниту еден осомничен од Титаник, одлучи кривичниот совет [Retrieved 24.02.2016]
• Таратур (16.02.2016) Правните експерти бараат специјален суд за предметите од СЈО [Retrieved 24.02.2016]
• Вечер (15.02.2016) Формирање на специјален суд се инсинуации, Уставот забранува вонредни судови! [Retrieved 24.02.2016]
• Устав на Република Македонија [Retrieved 24.02.2016]
• Закон за судови [Retrieved 24.02.2016]
• Алсат-М (17.02.2016) „Титаник“ насукан врз правните лавиринти [Retrieved 24.02.2016]
• Утрински весник (23.10.2006) Владата подготвува судии и закон за хашките случаи [Retrieved 24.02.2016]
• Вечер (23.01.2006) Специјална судница за хашките случаи? [Retrieved 24.02.2016]
• Дојче веле (20.07.2011) Амнестија за „Хашките случаи“ [Retrieved 24.02.2016]

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