Strasbourg, 12 February 2001

CCJE (2001) 20

Consultative Council of European Judges (CCJE)

Questionnaire on the independence of judges, their appointment and careers, and funding of the courts: reply submitted by “The former Yugoslav Republic of Macedonia”

A. INTRODUCTION

1. At its first meeting (8-10 November 2000), the CCJE asked the Chair of the Working Group to draw up questionnaires on the themes selected for discussion in 2001:

i) Standards concerning the independence (including the principle of irremovability) of judges contained in Recommendation No. (94) 12 on the independence, efficiency and role of judges, and in particular the relevance of these standards and any other international standards to current problems in these fields (see CCJE(2000)3, Part III A);

ii) The funding and management of courts with reference to the efficiency of the judiciary and with reference to Article 6 of the European Convention on Human Rights (see CCJE(2000)3, Part III A).

2. In accordance with the CCJE’s request, the Chair of the CCJE-GT has prepared this questionnaire in collaboration with the Chair of the CCJE, in order to obtain information summing up the various countries’ positions on the themes selected.

3. Each delegation is invited to send the Secretariat the completed questionnaire, together with any relevant texts, by 31 January 2001 at the latest. Delegations should mention in particular any problems encountered in practice and any suggestions concerning the principles and rules applied or the institutions concerned.

4. The Chair of the CCJE-GT will make an initial summary of the replies.

B. QUESTIONNAIRE ON THE INDEPENDENCE OF JUDGES, THEIR APPOINTMENT AND CAREERS AND THE FUNDING OF THE COURTS

I. THE INDEPENDENCE OF JUDGES

1. Is the independence of judges guaranteed by the Constitution or by legislation?

- The independence of judges is guaranteed by the Constitution of the Republic of Macedonia and other relevant laws.

2. What institutional safeguards are there with regard to the independence of judges?

- According to Article 8 of the Constitution, one of the fundamental values of the constitutional system of the Republic of Macedonia is separation of powers into legislative, executive and judiciary. The fundaments of court system are determinated by the Constitution in the provisions of article 98-108. According to the Constitution, judiciary power is yielded by the courts.
The courts are independent and autonomous and they litigate on the grounds of the Constitution laws and international agreements ratified in accordance with the Constitution.
The organization of judiciary is unique; extraordinary courts are prohibited. The types of Courts, their spheres of competence, their establishment, abrogation, organization and composition, as well as the procedure they follow are regulated by a law adopted by a majority vote of two-thirds of the total number of Representatives.
A judge is elected without restriction of his/her term of office. Judges are granted immunity. The performance of a judge's office is incompatible with other public office, profession or membership in a political party.

3. Is the irremovability of judges recognised?

- According to Article 99 of the Constitution a judge cannot be transferred against his/her will.

4. Can the decisions handed down by judges be reviewed or set aside outside the appeals procedures provided for by law, by institutions other than the courts of appeal or cassation?

- The judge passes impartial decisions based on his free assessment of the evidence and the rule of law. In the decision making, no restrictions, influences, stimulation, pressure, threat or interventions, directly or indirectly may be imposed upon the judge by any entity and for any reason. Neither by law nor by act of the executive power it is permitted to review court decisions or to change the composition of the Court in order to influence the decision making of the Court. Every state authority body is obligated to refrain from performing or omitting to perform an action that hinders the passing or execution of a Court Decision. The Court Decision may be amended or cancelled only by a competent Court in procedure regulated by law.

5. Can a case be withdrawn from a judge? If so,

i. on what grounds?
ii. by which authority?

A case can be withdrawn from a judge only using the institute of exclusion that is regulated in The Law on the Criminal Procedure and in The Law on the Civil Procedure.

According to the Law on the Criminal Procedure a judge or a lay judge must not exercise his obligation in concrete case:
- If he is damaged with the crime;
- If the accused, his counsel, prosecutor, damaged, his defense attorney or authorized representative is his marital i.e. illegitimate spouse or a blood relative according to law to whichever degree of kinship, a distant relative to the fourth degree and in-law to the second degree;
- If with the accused, his counsel, prosecutor or with the damaged is in the relationship of a guardian, a person under guardianship, one who adopts, an adopted child, one who fosters or a foster child;
- If in the same criminal case he was investigating or he participated in the examination of the accusation before the trial or participated in the procedure as a prosecutor, counsel, defense attorney or authorized representative for the damaged i.e. the plaintiff or was at the hearing as a witness or as an expert;
- If in the same case he participates in the decisions bringing of the lower court or if in the same court he participated in the decisions bringing which is cancelled with an appeal;
- If there are circumstances which provoke suspicion on his impartiality.

When the judge or lay judge realises existence of reasons for exclusions under above mentioned Article 36, the judge or lay judge is obliged to interrupt any activity on that case and to inform the President of the court on that, who will provoke him a substitute. If the judge or lay judge considers that there are other circumstances for his exclusions, he will inform the President of the court of that issue.
Also, the parties can demand exclusion. Parties may submit a request for exclusion until the beginning of the trial and if of the reasons for exclusion they are informed later, they submit the request for exclusion immediately after they have been informed. The party is obliged to cite the circumstances in its demand according to which it considers that there is a lawful ground for exclusion. The President of the court decides on the exclusions demand of the partie.

According to the Law on Civil Procedure, the judge or lay judge cannot perform the judge duty:

- if he himself is a party, a legal representative or an authorized representative of a party, if he has a relationship with the party of co-owner, co-liable person or recourse liable person, or if he has been heard as witness or expert witness in the same case;
- if he works, full or temporarily, for an employer who is a party in the procedure;

- if the party or the legal representative, or the authorized representative is his blood relative in first line, regardless to what level, or to the fourth level on the side, or if he is a marital partner or in-law relative to the second level, regardless whether the marriage has ceased or not;
- if he is a guardian, adoptive parent, adopted child, breadwinner or sustained person of the party, or of its legal representative or authorized representative;
- if he has participated in the same case in the rendering of the decision by a lower court or by some other agency;
- in other circumstances exist which bring his impartiality under suspicion.

A judge or a lay judge, immediately after finding out that one of the above reasons for disqualifications exists, is obligated to stop every action in this case and to inform the president of the court about this, who shall determine a substitution for him.
If the judge or lay judge is of the opinion that some other circumstances exist which bring his impartiality under suspicion, he shall inform the president of the court about this, who shall decide about the disqualification. Until the decision of the president of the court is made, the judge may undertake only those actions for which the danger of postponement exists.
The parties may request disqualification also. The president of the court decides about the request of the party for disqualification.

II. THE APPOINTMENT OF JUDGES AND THEIR CAREERS

1. What qualifications are required and what conditions must be met in order to become a judge?

- For a judge may be elected a citizen of the Republic of Macedonia, who fulfills the common condition established by the Law of employment in a body of the state administration, who is a law graduate with passed judiciary examination, and with a respected reputation for discharging the judicial office.
For a judge in a court of first instance, besides above mentioned conditions, the candidate must have over five years working experience with confirmed positive results in law (legal matter) after passing the judiciary examination, and for a judge in a court of Appeal - over nine years.
For a judge in the Supreme court of the Republic of Macedonia, besides above mentioned general conditions, the candidate must be a distinguished law expert and must have over 12 years working experience with confirmed positive results in law (legal matter).
For a judge in the Supreme Court of the Republic of Macedonia may be elected a Full or Associate Professor who has taught over ten years a law subject connected with judicial practice.

2. Are judges recruited by competitive examination, on the basis of a professional examination or on the basis of their qualifications?

- The judges are recruited on the basis of professional examination (judiciary examination) and their qualifications.

3. What level of studies is required to become a judge?

- see answer in II. 1.

4. Is previous professional experience required?

For a judge in a court of first instance, besides above mentioned conditions, the candidate must have over five years working experience with confirmed positive results in law (legal matter) after passing the judiciary examination, and for a judge in a court of Appeal - over nine years.
For a judge in the Supreme court of the Republic of Macedonia, besides above mentioned general conditions, the candidate must be a distinguished law expert and must have over 12 years working experience with confirmed positive results in law (legal matter).

5. Are there any age requirements?

- There are not age requirements.

6. Are judges elected?

- Judges are elected by the Parliament on the proposal of Judicial Council.

7. Or are they appointed?

- No.

8. Or are they selected in another way?

- /

9. Which authority is responsible for recruiting judges?

- Republician Judicial Council.

10. Does any authority independent of the government and the administration take part in the selection or promotion process?

- if so, specify the composition and role of this body?

- The Republician Judicial Council is composed of seven members who are elected by the Parliament. The members of the Council are elected from the ranks of outstanding members of the legal profession for a term of six years with the right to one reelection.
The office of a member of the Republician Judicial Council is incompatible with the performance of other public offices, professions or membership in political parties.

The Republician Judicial Council:
- proposes to the Parliament the election and discharge of judges and determines proposals for the discharge of a judge's office in cases laid down in the Constitution;
- decides on the disciplinary answerability of judges;
- assesses the competence and ethics of judges in the performance of their office; and
- proposes two judges to sit on the Constitutional Court of the Republic of Macedonia.

11. How and by whom are judges promoted?

11- The judges are promoted in a same way as the are elected in the courts of first instance. The are elected by the Parliament on the proposal of Republician Judicial Council.

12. What are the criteria for promoting judges? Are they objectively defined?

- The Republician Judicial Council establishes a nomination for choice of a judge for the Higher Court on bases of impartial estimation of the candidate’s professional and moral qualities, professional competency and experience exercised during his previous work.

13. In what cases can a judge be removed from office?

A judge can be discharged if:

- he/she so request;
- if he/she permanently loses the capability of carrying out a judge’s office, which is determinatd by the Republician Judicial Council;
- if he/she fulfils the conditions for retirement;
- if he/she is sentenced for a criminal offence to a prison term of a minimum of six months;
- owing to a serious disciplinary offence defined in law, making him/her unsuitable to perform a judge’s office as decided by the Republician Judicial Council; and
- owing to unprofessional and unethical performance of a judge’s office, as decided by the Republicial Judicial Council in a procedure regulated by law.

14. Do you wish to make any comments or mention any practical difficulties with regard to the independence and appointment of judges in your country?

III. THE FUNDING OF THE COURTS

1. How are the courts’ activities funded?

- The most of the courts’ activities are financed from the State Budget.

2. Give a brief description of the rules governing the setting of the budget for the judicial system and the courts.

- Each court prepares its own budget according to “pattern and criteria” determined by the Ministry of Finance. Once prepared courts’ budgets are submitted to the Ministry of Finance. Prior to their approval, an Assistant Minister of Finance holds a joint conference with the presidents of the appelate courts to discuss proposed courts’ budgets. The Ministry of Justice doesn’t participate in this stage of budgetary preparation, or if it does, its participation and impact is marginal. The Minister of Justice has no opportunity to review the budget for each court separately, and has no impact on its appropriation. Eventually, The Minister of Justice is given an opportunity to present and defend this part of the budget only before the Government, and then before parliamentary Commissions when they review and discuss the national budget as a whole.
The Ministry of Justice makes efforts to ensure additional funding for the development of the judiciary through its budget, but these funds are not enough to improve working conditions in the courts.

3. Do judges have any say whatsoever in decisions concerning funding or in managing the budget?

- The presidents of the courts prepare budget for own court and submit it to the Ministry of Finance. After that, an Assistant Minister of Finance holds a joint conference with the presidents of the appellate courts to discuss proposed courts’ budgets.

4. Do judges have adequate support staff and equipment, in particular office automation and data processing facilities, to ensure that they can act efficiently and without undue delay?

- In the Republic of Macedonia there is lack of computer equipment in the judiciary. In cooperation with different donors, Ministry of Justice computerized some of the bottlenecks in the judiciary. Namely, the computer equipment were installed in some courts in misdemeanor departments and trade register. The Ministry of Justice has prepared Strategy for computerization of the courts in the Republic of Macedonia that will facilitate courts to act more efficiently.

5. Do judges encounter other material difficulties, which prevent them from acting efficiently?

- The courts are faced with many material difficulties. The main problem is the lack of finance sources that are allocated to courts.

6. Are appropriate measures taken to assign non-judicial tasks to other persons?

- In the Republic of Macedonia there is reform of the legal system. One part of that reform is reform of judicial system. In its framework there is general agreement to take out some of the non-judicial tasks from the courts and assign them to other instiutions and persons.

7. General comments on the funding of the courts

- In the field of funding of courts there are some problems that courts are faced with. I would like to mention some of the problems.
For example, the presidents of the courts, who are responsible to prepare courts’ budgets, have made many attempts to introduce additional line items into their budgets in order to resolve problems faced by the courts in securing proper funding for their basic operations and work conditions. However, these budgetary line items have never been accepted or have not even been taken into consideration.
Right after the approval of the national budget by the Assembly of the Republic of Macedonia, a Law on Implementation of the Budget for the current year is enacted, too. This Law regulates the manner of utilisation of budgetary funds. It doesn’t contain any provisions of relevance for the courts and their budgets.
In the Republic of Macedonia there is general will for changing the system of funding of the courts. Within the Ministry of Justice were established Working Group which consists of judges, university professors and representatives from the Judicial Council and Ministry of Justice that has prepared an Elaboration for independent judicial budget. That Concept was strongly supported by Supreme Court and other responsible institutions and was approved by the Government.



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