Strasbourg, 18 January 2007
Consultative Council of European Judges (CCJE)
Questionnaire for 2007 CCJE opinion concerning the councils for the judiciary : Reply submitted by the delegation of “the Former Yugoslave Republic of Macedonia”
General context which refers to the judiciary
1. According to the Constitution of the Republic of Macedonia, the government lays down upon the principle of division of state authority on legislative, executive and judicial. The division of state authority has significance in the direction of consequent expression of the independent position of the judicial state authority. In Article 95, paragraph 2 of the Constitution, the position of the judiciary is expressed through the principles: independence and autonomy;
- According to the Constitution from 1991, the election of judges was being made by the Parliament of the Republic of Macedonia (Article 68, paragraph 15). The Parliament is consisted of 120 representatives, elected on general direct elections on which numerous parties participate. Therefore, the Parliament is consisted of representatives representing numerous parties. This type of multiparty composition of the Parliament had great impact on the election of judges, in the way that the governing parties, or the majority number of the representatives, lead by their party policy, have had influence over the election of judges through their votes given at the Parliament. In that way, the influence of the legislative state authority over the judicial power was felt through the election of judges, up to the point that the candidates for judges expressed and declared being in favor of certain political party, in order to obtain the confidence of the parliamentary majority and to be elected as judges. In this period, an option existed the election of judges to be made through the Commission for elections and appointments of the Parliament, which insisted on acquiring the right to give opinions to the Parliament on the candidates for judges proposed by the Republic Judicial Council (RJC proposed to the Parliament candidates and the Parliament elected them).
With the constitutional amendment XXIX from 2006, with which the position of the RJC was changed, the election and the dismissal of judges is now made by the Judicial Council of the Republic of Macedonia;
- With the Law on Judicial Council of the Republic of Macedonia (Official Gazette of the Republic of Macedonia No. 60/2006), in Article 2, the Judicial Council is defined as autonomous and independent body, which guarantees the autonomy and the independence of the judiciary. In what way the Council will guarantee the independence of the judiciary remains to be seen in the future, as the Judicial Council hasn’t been constituted yet and haven’t commenced to work according to the new legal solution. We can tell that neither the Constitution nor the Law on Judicial Council gives guarantees and do not offer instruments that would protect the judiciary from the influence of the legislative state authority. That influence is removed from the Parliament, but remains to be seen whether it will be transferred in the Judicial Council for its definitive election of judges;
- There is another form of influence over the judiciary by the Parliament through the procedure and the modality of passing laws concerning the judiciary (experiences are negative in the direction that the procedure of drafting and passing them in the Parliament lasts too long, with possibilities of influence on their content from the majority parties or through bargaining between the coalition parties).
2. The judge enjoys procedural immunity, and that way he/she is protected from influences of any kind from the legislative state authority. Upon limitation or invocation of the immunity of a judge, decides the Judicial Council. Even when a possibility for initiating procedure against a judge exists, the legislative state authority doesn’t have influence at all; that is a decision of the Judicial Council. The independent and autonomous position of the judge in the performance of the judicial function is guaranteed by the Constitution and the Law on Courts and in that way the legislative state authority could not in any way influence upon certain legal authorities, but the party representative in the Parliament or other person from the legislative state authority, with abuse of his/her official position, authority, blackmail, could influence the judge individually. But, finally, that depends on how the judge understands his/her independence and how he/she implements it;
- the legislative state authority or a representative in the parliament could not in any way influence the facts that are subject of evaluation by the judge in a certain procedure. The procedural justice in all procedures does not allow that, and attempts of influence are, again, question of independence of the judge and his/her judicial integrity;
- the judge and the judiciary are not protected enough from the influences on the procedural actions they undertake, especially phone tapping etc. Cases of police influencing judges, summoning them in the police station are registered, but the sharp reaction of the Republic Judicial Council, but the transfer of the debate on the judicial independence on a state level as public reaction, resulted positively. The procedural laws give the judge sufficient protection, and the rest depends on the attitude of the judge.
3. The Draft Law on Courts from 2006 contained a provision with which the legislative and executive state authorities were obligated to take care and to provide conditions for autonomous and independent performance of the judicial function. The final text, submitted by the Government excluded this provision;
- Several paragraphs of Article 3 of the Law on Courts obliges state bodies (the executive state authority) to enforce judicial decisions and to reply without objections to the needs of the courts. They could not, in any way, influence the decisions of the judges. According to Articles 14 and 15 these bodies are obliged to enforce the judicial decisions without objections. The non-enforcement is a criminal act.
- The courts and the judges are protected from influences of the bodies of the executive state authority and their independent position is guaranteed through standards of procedural justice, which are embodied in the procedural laws and in the Law on Courts, in Article 10.
- Of course, there are always possibilities for influence on the judges by the executive state authorities individually, but not on the judiciary as an institution. That influence is a question of the integrity, autonomy and independence of a particular judge and his/her capability to resist those influences and to protect him/herself from them;
- When we speak about the relation between the executive state authority and judiciary, there is one central problem, which is not solved yet: the finances of the judiciary. There is a Law on Independent Court Budget, which does not provide independence of the judiciary in terms of finances, given the fact that the Ministry of Justice approves the funds, according to its own evaluation. Secondly, the Law on Judges’ Salaries is not enacted yet. These two problems seriously endanger the independence of the judiciary from the executive state authority, especially from the bodies which approve the funds even when the budget is final.
4. The Minister of Justice is a member of the Judicial Council of the Republic of Macedonia by his official function, which putts him in a position, through his vote for election of judges to make influence. By having this position, he can influence on the selection, training, carrier and disciplinary responsibility of a judge. According to amendment XXVIII, the Minister of Justice is a member of the Judicial Council by function and the ministerial function is the source of his authority, consequently, the Government through him, i.e. the executive state authority can influence all situations in which the judge is involved while performing the judicial function, from election to disciplinary responsibility, dismissal and promotion;
- The internal organization of the courts is regulated with “Book of Rules on Courts Organization“ which is adopted by the Minister of Justice. As a member of the Judicial Council, with his position he can influence the election of the President of the court.
5. The head of the administrative personnel in the courts is the President of the court, and aside from him, in the larger courts, the Secretary of the court is an administrative manager of the personnel and manages the organization of the work, the schedule of the work etc.. But, always in consultations with the President of the Court.
- The Minister of Justice doesn’t have influence on the court administration staff, but the President of the Court;
6. The President of the Court, according to Article 47 of the Law on Courts, is elected out of the judges, in the same procedure as the election of judges by the Judicial Council. The President is elected for a period of 4 years, with a possibility of one more election. The President has a status of judge in the respective court. The Law is not explicit on what is the function and authority of the president of the court, but he/she is treated as head of the administration and organization of all employees in the court and from that position he/she organizes the work in the court, he/she is the financial executive, who manages the approved budgetary funds for the court, prepares drafts and implements the Program for the work of the court, evaluates the work of the judges – gives opinions, drafts the annual plan for the judges, he/she can submit proposal to the Judicial Council for initiating procedure against a judge for disciplinary responsibility and dismissal. He/she evaluates the work of the court, as well, that way evaluating his/her own work. The President does not influence the carriers of the judges directly, but influences implicitly, with an opinion;
- The fact that the Law does not elaborate the position, the authority of the president of the court, the relations with the judges, as the head of the court, with the administrative personnel, as well as his role as the manager of the court, is not a good solution and that is being reflected in the work of the courts, especially with regard to the lack of diligence and quality of the judgments, measured through the number of the abolished and confirmed judgments.
General information regarding Councils of the judiciary
7. With the Constitution of the Republic of Macedonia from 1991, the Republic Judicial Council was established (Article 105 of the Constitution), and on 12.12.1992, the Law on Republic Judicial Council was enacted, in which RJC is defined as a body responsible for providing independence of judges, election of judges and deciding upon liability, even dismissal, as a harshest measure. The Council was consisted of 7 members, elected out of the “distinguished lawyers“ – not sufficiently defined qualification, for a period of 6 years. The first Judicial Council, in which out of seven members, four were judges, conducted the general election of judges. After the expiration of the term, under suspicions of political influence on the work of the Council, the Law was changed, and limitations were set down for the candidates, which resulted with increased political influence on the composition of the Republic Judicial Council and that was expressed through the election of the judges in the Parliament and the Council.
- With the enactment of the Strategy for reform of the judiciary of the Republic of Macedonia (1994-1995) initiative was started for changes of the Constitution of the Republic of Macedonia, especially in the part concerning the judiciary and the part regulating the Republic Judicial Council. With the constitutional amendments XXVIII and XXIX, the status of the Council is regulated and its name changed into“Judicial Council of the Republic of Macedonia“ on May 15th 2006. According to the constitutional amendments and Article 2 of the Law, the Council is defined as autonomous and independent body which provides and guarantees the autonomy and independence of the judicial state authority.
8. Therefore: “Judicial Council of the Republic of Macedonia“ exists.
9. The legal basis is the Constitution and the Law (the first Council worked according to a “Rulebook of the Republic Judicial Council“, General criteria for election of judges and Rules on the procedure for determining unprofessional and unethical performance of the judicial function (Independent judiciary – Compilation of documents, edition of the Republic Judicial Council, 1997, Skopje).
10. The concept of establishing Judicial Council as independent and autonomous judicial body was developed through the idea of creating preconditions for independent and autonomous performance of the judicial function, above all through election of the judges and deciding upon liability of the judges for unprofessional and unethical performance of the judicial function. In the preparations of the judicial reform, in the years after the enactment of the Constitution, experiences and organization of some of the developed states, especially France, Spain, Italy, Switzerland and others were elaborated and analyzed, and based on those acknowledgements the concept of the Republic Judicial Council was built, as a body which proposes candidates for judges, and the election is being done by the Parliament, as it is the case with deciding upon liability of the judges: the Republic Judicial Council proposes, and the Parliament decides.
- Already were mentioned the negative experiences of political influence in the Parliament of the Republic of Macedonia over the election of the judges and shortly after, changes of the Law on Republic Judicial Council happened, followed by the changes of the Constitution of the Republic of Macedonia in the part regulating the Republic Judicial Council.
11. In the aspiration to establish judicial body that would be protected from the influence of the other state authorities, which would be provided through dominant participation of the judges in its composition, terribly complex and complicated body regarding its composition and the procedures for its establishment was created.
- The composition of the Judicial Council of the Republic of Macedonia is 15 members;
- Members by function of the Judicial Council of the Republic of Macedonia are: the President of the Supreme Court of the Republic of Macedonia and the Minister of Justice;
- Eight members of the Council are judges, elected by the judges;
- Three members of the Council are from the communities which are not majority in the Republic of Macedonia, elected by the Parliament of the Republic of Macedonia (Badinter principle);
- Two members proposes the President of the Republic of Macedonia, and the election is being done by the Parliament of the Republic of Macedonia, one of which is a member of the communities which are not majority in the Republic of Macedonia.
As you can see, the Judicial Council of the Republic of Macedonia is the only state body which is established and elected with direct participation of the three state authorities: legislative, executive and judicial. Moreover, the structure is being further complicated by the use of the Badinter principle on the election of the members of the Judicial Council of the Republic of Macedonia, which is appropriate participation of the representatives of the communities. This rule, basically ruins the main concept that the judge is a man (not Albanian, Macedonian or other nationality) who adjudicates without discrimination on any basis, and the Council is called upon to evaluate the ethics, competence, impartiality and righteousness of the judge in his/her overall work. In fact, the composition and the election of the Judicial Council of the Republic of Macedonia is in favor of the aspirations for internal structuring of the Council in the decision-making, with special emphasis on the criteria for election of the members of the Council.
- In the previous Law on Republic Judicial Council and the Constitution it was stipulated that the members are elected among the “distinguished lawyers“. Now, this insufficiently clear qualification is removed, and conditions for elections are envisaged only for the members elected by the judges, and not for the other members;
- Member of the Council elected by the judges should fulfill the following conditions: at the moment of announcement to perform judicial function, to have at least 5 years of working experience as a judge, to have positive evaluations by the Council in the last three years of the performance of the judicial function (for the first election, probably the old Council gave the evaluations, but there aren’t any proofs that these evaluations had influence on the election and application);
- Members of the Judicial Council of the Republic of Macedonia can be also persons who are not lawyers and don’t have lawyer or judicial experience, but are representatives in the Parliament, and the President of the state considers them as competent to perform this function.
12. The procedure for election of members of the Judicial Council of the Republic of Macedonia is regulated with the Law on the Judicial Council of the Republic of Macedonia and it is regulated in details, in order to secure just, objective and fair election of the members of the Council.
- The President of the Council announces the election of members of the Judicial Council of the Republic of Macedonia, three months before the expiration of the term of a member or for the pre-term expiration of the mandates of the membership of the Council. The President of the Council informs the President of the Republic of Macedonia if the member in question should be proposed by the President, or the Parliament, if the Parliament should elects the member.
- The Badinter principle is always respected if election of a member of the minority communities takes place. In the districts where at least 20,0% of the minority population lives, the announcement is publicized in the language of the minority communities, as well;
- Regarding the election of the candidates out of the judges, they should fulfill the conditions abovementioned, accompanied with the necessary certificates as proofs, and they should send the applications to the Council;
- Regarding the acceptance of the candidates from the basic, appellate courts and the Supreme Court of the Republic of Macedonia, consideration is given to the participation of the representatives from the minority communities, according to the Badinter principle;
- The Judicial Council competent for implementation of the election by the judges, establishes Commission for implementation of the election (The first election was implemented by a Commission appointed by the Minister of Justice?!);
- The Commission develops the list of candidates, taking into consideration representation of the basic courts, appellate courts and the Supreme Court and representation of the minority communities;
- The list of candidates (lists, because there is more than one) is approved on a session of the Council;
- After the approval of the lists of candidates, the Council, out of its own members, establishes Commission for election, which implements the elections;
- During the implementation of the elections consideration is given to the appropriate participation of the judges of all appellate districts, Supreme Court and the basic courts, as well as representation of the minority communities;
- For successful and regular implementation of the elections, special “Judicial Election Rulebook” is prepared, which contains specific information on the elections and is administered by the Ministry of Justice;
- The Law on the Judicial Council of the Republic of Macedonia regulates the procedure for election of the members by the judges in accordance with the Law on Elections, and envisages forming of Election Boards for implementation of the elections, with special instructions for the specific activities and the terms that should be met;
- The election material, the voting papers with the information, the distribution of the election material, the voting, processing of the election material and delivering to the election commissions with minutes, announcing the election results and non-valid voting papers, therefore, the election procedure is prescribed in details, according to the general law on implementation of election for the state authority bodies.
13. The President and the Deputy President of the Council are elected on the first constitutive session of the Council with simple majority vote, for a period of two years, without a right for a second term. The President of the Supreme Court and the Minister of Justice cannot be elected presidents of the Judicial Council of the Republic of Macedonia.
15. Article 30 of the Law on the Judicial Council of the Republic of Macedonia regulates the issue of termination of the mandate of a member of the Council: after the termination of the mandate for which is elected, on his/her request, if he/she fulfills conditions for retirement according to the law, if he/she is sentenced with an enforceable judgment for a criminal act, which makes him/her unworthy of performing the function member of the Judicial Council, if he/she permanently loses the capability of performing the function or profession. The termination of the mandate under some of the mentioned basis, is regulated in the Law on Judicial Council of the Republic of Macedonia. Therefore, from the abovementioned results that a member of the Judicial Council of the Republic of Macedonia could be discharged “by his/her will“ and “against his/her will“, under conditions set in the Law.
16. The Judicial Council of the Republic of Macedonia is financed by the State budget through the Independent Court Budget, managed by the Budgetary Council. The President of the Judicial Council is a member of the Budgetary Council of the Independent Court Budget. The seat of the Independent Court Budget is in the Supreme Court of the Republic of Macedonia and its president is the President of the Supreme Court of the Republic of Macedonia;
17. The Judicial Council in the old composition was consisted of 7 members with permanent employment in the Council, for a period of 6 years. Aside from the members of the Council, it has its own expert personnel: advisers, expert associates, Secretary of the Council, technical personnel.
18. The Personnel is responsible to the President of the Council and the members of the Council and doesn’t have any relations with the Ministry of Justice, the Supreme Court or other institutions.
19. The personnel are consisted of 10-15 employees.
20. They are graduated lawyers with passed bar exam and eventually have working experience in the courts.
21. It is not consisted of judges and it shouldn’t have.
22. The personnel of the Council:
- Prepares materials for the members of the Council;
- Provides analysis and evaluations on the court practice;
- Analyzes the annual reports of the courts;
- Compiles materials related to the procedures in which judges are involved;
- Prepares the files for the applying candidates for election of judges;
- Analyzes the work of the judges during the whole year and compiles elements for evaluation of the judge and the court, etc.
23. The Judicial Council of the Republic of Macedonia, according to Article 31 of the Law on Judicial Council of the Republic of Macedonia has the following competences:
- Elects and dismisses judges;
- Elects and dismisses presidents of the courts;
- determinates termination of the judicial function;
- elects and dismisses jury judges;
- follows and evaluates the work of the judges individually;
- decides upon disciplinary responsibility of the judges;
- determinates termination of the judicial function of the judge due to permanently lost capability of performing the function;
- decides upon pre-term removal of the judge from performance of the judicial function;
- determinates free seats for judges in the courts;
- reviews and evaluates six months and annual reports on the work of the courts;
- takes care for the reputation of the judges and the confidence of the citizens in the judiciary;
- acts upon complaints and suggestions from citizens and legal entities regarding the work of the judges and courts;
- prepares and submits reports for its work;
- proposes two judges for the Constitutional Court;
- adopts by-laws;
- promotes judges by electing them for higher courts;
- determinates the number of the judges, but not the number of the courtrooms;
- in the field of initial training of the judges until now the Council didn’t have any influence, but from now on, with its participation in the Managing Board of the Academy for Training of Judges and Public Prosecutors, can make influence. Until now, also, the Judicial Council organized public promotions of the reports of some of the courts, with financial support from the OSCE;
- The Council has authorities, which also result from its position and functions, to make general evaluation on the quality of the work of the courts and judges, including setting down standards – the Council did not use these authorities. With the new Law on Courts, in the Article 69 envisaged is the possibility for initiating procedure against a judge or jury judge for reimbursement of damages, by the party which is not satisfied with the judicial decision;
- Regarding the individual work of the judge (evaluation in terms of quantity and quality), elaborated methodology for following these processes does not exist;
- With the Law on Courts and the Law on Judicial Council of the Republic of Macedonia the overall disciplinary procedure of the judges is prescribed. The international standards on procedural justice, as well as Article 6 of the ECHR are guaranteed and respected;
- In the field of adopting the budget, the Judicial Council doesn’t have any authority, as it is in competence of the Budgetary Council, which is located in the Supreme Court, and it is managed by the President of the Supreme Court. The Association of Judges of the Republic of Macedonia constantly debates on the issue of changes and suplements of the Law on Independent Court Budget, and its transfer in the Judicial Council, as well as on enacting a Law on Judges’ Salaries. At the moment, the Council does not have relations with the Government and the Parliament regarding the budget. At the same time, it is necessary criteria to be developed, which will be basis for projection of the budget in each court, based on the costs of each case in the court. The distribution of the funds among the courts is done by the Budgetary Council, in accordance with the way they are determined in the beginning of the year, when the budget is adopted, but without any elements of development programs;
- The legal acts in the area of the judiciary are created, drafted within the Ministry of Justice, which establishes commissions consisted of members from the courts (judges), public prosecution offices, professors, etc. But, at times, the Parliament reveals its superiority over the judicial state authority through the procedure of preparation and enactment of the laws, especially because of the fact that these laws are enacted with two-thirds majority vote, and this type of high majority is not created easily and automatically.
24. The Judicial Council cannot initiate procedure in a criminal sense. Judicial Council decides upon the invocation of the immunity of the judge and his/her custody, and this is where its authorities in this procedure end.
25. The Judicial Council can obtain information on the conditions in the courts and the work of the courts from various sources: from the courts through their annual reports, or through written reports for concrete occasions, which the Council requests from the courts, through reports of the higher courts regarding their visits in the lower courts, through visits of teams of the members of the Judicial Council of a certain court and the inspection in the documentation of the court (but not in files of the cases) in conversations with the judges and the presidents of the courts, as well as from other sources.
- In this way, the Council can obtain information on all aspects of the functioning of the courts, or concrete aspects for which interest is expressed;
- Through the expert offices, the Council analyzes all materials, information, reports from the courts and for the courts. The Council can analyze the content of the complaints from the citizens, as well;
- Daily following and analysis of the daily press and electronic media are significant source of acknoledgements on the courts and the judges, as well.
26. According to the Law on Judicial Council of the Republic of Macedonia, the Council can adopt Rules on functioning of the Council and other general acts. So, the Law does not elaborate the question which measures can the Council take to improve the work of the judiciary. But, it is logical that from the analysis of the annual and other reports for the work of the courts and judges, it can create and express opinions. The old Judicial Council did that in a very shy manner, during a promotion of the annual reports in the separate courts. However, according to our opinion, there are no obstacles the Judicial Council to issue recommendations, decisions, opinions to the courts. That would not be a question of authority, but a question of initiative of the Judicial Council.
27. The competence and the liability of the members of the Council are prescribed in the Law on Judicial Council of the Republic of Macedonia, in the Article 31 and other Articles.
28. It could be said that the liability is prescribed through general formulation, with a lack of clear determination and elaborated methodology for its implementation. The liability is prescribed, as already mentioned, in regard with termination of the mandate within the Council.
29. Yes, our state has a Code on Judicial ethics, which was adopted by the Association of Judges of the Republic of Macedonia, which is competent for implementation of the Code, but not the Council.
30. The Council does not have competence over the external relations of the courts and, therefore, does not have full inspection on how, on what level and regarding which questions they are conducted. Article 33 of the Law on Judicial Council of the Republic of Macedonia is entitled “publicity in the work“ and it emphasizes that the sessions of the Council are public and under which conditions they could be closed, for which it is decided with 2/3 majority vote, out of the total number of members. Therefore, we could not say that the mechanisms for publicity and communications with the public in the work of the Council are elaborated. Even the President does not have authority to manage the communications with the public: transparency is disarmed.
31. The Law on the Judicial Council of the Republic of Macedonia does not contain strict provision on the procedure following the decisions of the Council, but from the overall text and the position of the Judicial Council, as well as from the fact that its sessions are public, and it decides on sessions, they should be public. But, that provision does not exist, as is the provision that the enforceable decisions are publicated and accessable, especially because they concern rights and obligations of judges. As far as we know, the Council does not have web site and internet connection, so that would make the decisions accessible in that form, as well.
Evaluation of the self-government and the independence of the judiciary
32. To what extent the work of the Council is dependent or under influence of the executive state authority, we have indicated through arguments, which enables the Council to perform its function independendly, especially with the authority to elect judges and presidents of courts, to initiate desciplinary procedure and to dismiss judges and other guarantees set down in the law. On the other hand, the Council is established, the members are elected with direct participation of the legislative and the executive state authority. Secondly, the Council is financed through the Ministry of Finances. But, the new Council hasn’t commenced with work yet, so we should wait and see how it will function, how it will perform its most important function: to guarantee the independence of the judiciary.
Therefore, the executive state authority is directly involved in the work of the Council.
In a similar way, the legislative state authority is involved, as well. The best example is the current situation, in which the Parliament cannot elect the members of the Council out of its representatives.
33. Regarding the other state institutions, the Judicial Council is not object of their control or supervision or subject of responsibility. The Council in relations to them is as much independent as it can provide pozition, reputation, integrity, respect and authority for itself.
34. The distinction of the authorities between the Judicial Council and the Ministry of Justice is not carried out all the way through and some issues are still mixed. The best example is the the “Rules on the functioning of the courts”, which is adopted by the Minister of Justice, and it contains and regulates many questions concerning the autonomy and independence of the judiciary.
35. The cooperation between the Council and the Supreme Court and the presidents of the courts should be reviewed on two levels: first, legal provisions do not clearly distinct the authorities of the one from the other. Especially, the competences of the presidents of the courts are not defined. On the second level, due to the functioning of the judiciary, due to the responsibilities that must be carried out, cooperation must be conducted on official level. In our country, the press publicized that the President of the Judicial Council and the President of the Supreme Court of the Republic of Macedonia don’t communicate at all.
- Attempt was made in the new Law on Courts to define the authorities of the presidents of the courts in all levels, but it wasn’t accepted. In our opinion, this question should be resolved and the president should act as a judge who is capable of adjudicating the most difficult cases and as a court manager, as well.
36. According to the position of the Judicial Council set in the Constitution, the constitutional amendments and the Law on Judicial Council of the Republic of Macedonia, the Judicial Council has the same rights and competences, the same authorities towards all courts for which elects judges and decides upon responsibilities of the judges, as well as for which elects the presidents and dismisses them. So, for all of them the same rules are applied, which is good in this system. But the question is how the problems in their internal relations will be resolved, when they result from the vanity of the persons?
37. The Judicial Council sets down its own priorities with the program or with the initiatives of the President and the members of the Judicial Council.
38. Courts and judges can individually appeal the decisions of the Council if they are not satisfied with them. That depends on the type of the decisions. This issue is regulated with Article 60 of the Law on the Judicial Council of the Republic of Macedonia. But, we have two situations: when the decision of the Council is general decision; when the decision is regarding dismissal or punishment of a judge which is addressed to the council of the Supreme Court, established to decide upon this decision of the Judicial Council; when the Council receives appeal, which is then referred to special body for appeals in the Supreme Court.
39. Instruments and practice used by the Council:
- There aren’t any instruments or practice, but there were several cases when the Council was called to react and to protect the independence of the judiciary. The first Judicial Council entered into a conflict with the Parliament and its Commission for elections and appointments, which attempted to make selection of the proposals of the Judicial Council, and through the public debate, and the one in the Parliament, succeeded to resolve this problem;
- However, in the meantime, when there were direct attacks on the judiciary, the judges and the courts, the Judicial Council went in public with communications, which haven’t influenced the public opinion significantly, neither have protected the judges and the courts;
- Judges are not sufficiently protected by the Council from public attacks from the citizens, institutions, lawyers and others, as well as from the state bodies, which at moments meant prejudicating the judgment, as well as influence on the court in a form of a public pressure;
- The struggles of the judicial councils in the protection of the independence of the judiciary, courts and judges, as well as in their own protection and the protection of their members, went from non agile, inactive to a totally passive behavior;
- When we speak about methods, procedures, modalities and models of reaction of the Judicial Council in protecting the independence of the judiciary, courts and judges, it is considered that Council should find its own modalities of reaction, to elaborate the methodology of communication with the public, all that depends on its position and the readiness to act in the name of protection of the judiciary;
- Regarding the statements in the Opinion 7 of the CCJE and Article 55, the Council has responsibility to take measures to protect the judges and the courts. Passivity is not paid off, especially when the reputation of the judiciary is in a low level.