The judicial reforms are put on ice

Actual advancement of the judiciary may be anticipated only after a prolonged period of time since the implementation of the Law on courts, the Law on the Judicial Council and the other amendments in this field, the Venice Commission concludes. The judges themselves believe that “great progress in the judiciary cannot be felt yet”

Author: Sashe Dimovski

Have the judicial reforms progressed and, if so, to what extent? The answer to this question provided by Antoaneta Dimovska, judge of Basic Court Skopje 2, says a lot about the perception of the people who are part of the judicial system:

– Great progress in the judiciary cannot be felt yet, but there is some progress, since we have recognized the problem – says this judge of the Skopje civic court.

This statement was given on the European Day of Civil Justice, when the judiciary “opened” itself to the citizens, who could ask questions about the functioning of the judiciary outside of the scope of their experience as parties in court proceedings.

The realization of the announced judicial reforms is nowhere near the expected level and all the planned reforms were put in the shade by the name issue during the last few months, despite the tiny developments.

THE NEW LAW ON THE JUDICIAL COUNCIL

The amendments to the Law on the Judicial Council, according to the Venice Commission, need further corrections in order to guarantee full independence of the judiciary, because the disciplinary procedures for dismissal of judges are not fully defined, and furthermore, a request is made for expunging the new stipulation that a judge shall be dismissed if the European Court of Human Rights establishes a violation in a court proceeding led in domestic courts.

– The recent amendments to the Law on the Judicial Council and the Law on Courts are to be assessed positively. The new institutional arrangements and procedural rules are simpler and more intelligible, and protect judicial independence better than before. The Venice Commission congratulates the governing coalition and the opposition for reaching a compromise on these amendments and encourages them to continue in the same spirit. The two laws lay solid foundations to the well-functioning judiciary – is Commission’s general assessment given in the opinion, followed by the remarks below:

– the Law on the Judicial Council should specify who has the filtering function in the new system of disciplinary proceedings (this function may be given to the Inquiry Commission, but other models are also possible)

– the role of the plenary Judicial Council vis-à-vis the Inquiry Commission and the Appeal Council should be better explained (namely whether the Judicial Council is bound by the proposal of the Inquiry Commission, and who takes the final decision in a disciplinary case if the Appeal Council returns the case with “guidelines”)

– the authorities should reconsider which types of decisions need a 2/3 majority in the Judicial Council, and specify what happens if this majority is not reached;

– the effectiveness of the performance evaluation system (elements of evaluation, scores attached to them, etc.) should be reviewed, after a test period; the function of devising the system of performance evaluation may be given to the Judicial Council itself; the role of the extraordinary evaluations in the promotion process should be clarified;

– Articles 75 and 76 of the Law on Courts should be reformulated in order to avoid parallelism and reflect the distinction made by the Constitution between “unprofessional and neglectful exercise of the judicial office” and a “serious disciplinary offence”

– the law must make clear that the dismissal of a judge for a professional error is possible only if two pre-conditions are established: the fault of the judge concerned (in the form of intent or gross and evident negligence), and the gravity of the error and its consequences.

“In any event, individual judges should not bear responsibility for the malfunctioning of the judicial system as a whole” – the Venice Commission wrote.

While judges have to apply the case-law of the European Court of Human Rights, they should not be punished for honest errors in performing this task. Where the European Court finds a violation of the Convention in a case handled by a judge, this should never lead automatically to the dismissal of this judge, or to the reduction of the overall score in the performance evaluation process – the Venice Commission wrote in the opinion.

In the conclusions, the Venice Commission says that a lot will now depend “on the application of those two laws in practice, which will be possible to assess only after a certain period of time”.

Thus, the Government is supposed to intervene with amendments to the Law on the Judicial Council and tweak the issues pointed out by the Commission.

THE MINISTER AND THE CHIEF JUSTICE OF THE SUPREME COURT WILL REMAIN MEMBERS OF THE JUDICIAL COUNCIL

However, the key anticipated “reform” of the Judicial Council is absent: its ex officio members will still be the Minister of Justice and the Chief Justice of the Supreme Court, plus three members will be elected by the Parliament (the only amendment is that active judges cannot be elected by the Parliament, which is the case now), and two members more upon the proposal of the President of the state, while 8 members will be elected by the judges themselves. There isn’t any efficient remedy for the following problem: who and how can dismiss/revoke members of the Judicial Council before the end of their 6-year term in case of malpractice, i.e. if they do not exercise their function conscientiously and responsibly.

The Judicial Council is an important element in the functioning of the judiciary, as it elects and dismisses judges who are later responsible for the rule of law, legal security of the citizens and application of the laws.

Judge Antoaneta Dimovska, who recently quit the Association of Judges protesting its lack of reaction to the procedure of electing the judges, says there must be an independent body that will pinpoint the judges who could not be part of the judiciary.

-The judiciary needs to be reformed. We are aware that the reform entails personal reform too, we are aware that there are people who do not deserve to be judges. However, we are aware that a certain independent body has to examine each judge whether he/she works properly or not. On behalf of a large number of judges, we have to say that we do not want to share in the disgrace of certain judges unworthy of the function – judge Dimovska of the Basic Court Skopje 2 says.

One of the challenges faced by the current Judicial Council, which was elected in 2012 and has only one more month of tenure, is the election of judges in the Appellate and Supreme Court as well as the head of the Skopje Appellate Court, an office that has been empty for a year while the election has been constantly postponed due to various reasons.

A new attempt to fill these important judicial positions is set for 30 October. 9 judges – 4 of the Skopje Appellate Court and the rest from the two Skopje courts and the Kavadarci court – are running for the office of head of the largest court in the country that rules on all cases of the SPO and the Prosecutor’s Office for Prosecuting Organized Crime.

The general reelection or “vetting” in the judiciary, announced by the Prime Minister Zoran Zaev during the election campaign, is impossible, because Macedonia hasn’t received international factor’s consent.

THE COUNCIL OF PUBLIC PROSECUTORS AND THE ACADEMY FOR JUDGES AND PUBLIC PROSECUTORS

Ana Pavlovska Danevska, who was hired by the Government as an “expert” on the reform laws package presented previously in Brussels, announced that in a press conference in Skopje. Daneva said “the judiciary needs some fresh air, but the vetting which is planned for the Ministry of Interior as well, didn’t get the green light from the international factor”.

Amendments to the Law on the Council of Public Prosecutors are among the key elements of the judicial reforms. The international reports on the situation in Macedonia describe the Council of Public Prosecutors as absolutely non-transparent and it’s been years since it has elected public prosecutors in multiple significant prosecutor’s offices, such as the Skopje High Prosecutor’s Office or the Prosecutor’s offices in Bitola, Veles, Struga, which have only acting prosecutors. According to Skopje Criminal Court’s statistics, nearly 1000 trials had been postponed in the Crime – Adults Department in just a year, only because a single public prosecutor didn’t show up in the courtroom.

One significant improvement is last week’s dismissal of Aneta Arnaudovska, the director of the Academy for Judges and Public Prosecutors, who was in charge of this institution for three and a half years past her last term, but only because she couldn’t run for that office for the third time. Nevertheless, she held that office for 11.6 year instead of 8 years. Following the formation of the new Executive Board, without the State Public Prosecutor and the Chief Justice of the Supreme Court, Arnaudovska was dismissed, and now there is vacancy announcement for director of the Academy and, for the first time, a vice director, a position that hasn’t been filled in the past 12 years since the establishment of this institution.

The positions of director and vice director of the Academy can be filled only by judges or public prosecutors.

Judges demand amendments to the 2005 Law on Contentious Procedure which will prescribe that small amount disputes are the ones up to 5.000 euros, not 10.000 as it has been thus far, then amendments to the Law on Court Fees, which are excessive and limit the access to justice of many citizens, as well as activation of the Law on Free Legal Assistance, which will cover many citizens, representatives of vulnerable categories.

The Ministry of Justice has been working on amendments to the Criminal Code regarding hate speech crimes. But in order to amend this, as well as the Law on Courts, the Contentious and other process laws require majority of two thirds in the Parliaments, which was difficult to reach in the past period.

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