Strasbourg, 4 February 2008

CCJE/REP(2008)14
English only

Consultative Council of European Judges (CCJE)

Questionnaire for 2008 CCJE Opinion concerning the quality of judicial decisions: reply submitted by the delegation of “the former Yugoslav Republic of Macedonia”

Part I: Preparation of the judicial decision

Question 1

Is there a specific model to be followed in drafting judicial decisions?

In the criminal procedure resolutions are reached in forms of verdicts, decisions and orders.

Verdicts are brought only by the court and decisions and orders may be brought by other bodies which participate in the criminal procedure.

In the civil procedure the court brings its decisions in the form of judgments or a decision. The court decides on the claim with a judgment. In the cases when the court does not decide with a judgment, it decides with a decision.

In the general administrative procedure the organ that is competent to resolve the case brings its decisions in form of a decision or conclusion. With decision the organ decides for the matter which is subject of the procedure while he brings conclusions for questions regarding the procedure as well as for those questions which will appear as secondary questions in relation with carrying out the procedure and that can not be resolved with a decision.

Both Law on criminal procedure and Law on civil procedure predict that with judgment the court is deciding on relevant subject of the procedure while a decision is brought mainly about resolving procedural matters except in cases determined by the law when a decision is brought about resolving the relevant subject of the procedure.

Law on criminal procedure and Law on civil procedure are exactly defining the structure and content of the decisions from which the judges can not deviate. Namely, each judgment and decision regarding the relevant subject of the procedure must have an introduction, pronouncement and an elaboration. A decision which is brought about procedural matters during the procedure must have an elaboration only when the law predicts so.

Law on Criminal procedure

With the verdict, the charge is either rejected or the defendant is released from his charge or he is found guilty. If the prosecution encompasses several crimes in the verdict it will be pronounced whether and for which crime the charge is rejected or the defendant is released from his charge or he is found guilty.

Other decisions which may be brought in resolving the relevant subject of the procedure in brief procedure are: verdict without main trial, a decision for a court reprimand, verdict with which court pronounces the alternative measures (common useful matter, conditional termination of proceeding of criminal procedure and house arrest- these verdicts with agreement of the accused and injured can be brought without main trail).

In the criminal procedure for minors the court can decide about the relevant subject of the procedure with a decision for educational measures and verdict with wich such a sanction can be pronanunced. This kind of verdict is brought in a form that is perdicted in the law for decisions brought in regular procedure.

The verdict pronounced to the legal person, besides the components that every verdict must contain, has to content the name of legal person and its residence, personal number, name and surname of its representative and the residence address, as well citizenship and the number of the travel document of the foreigner selected as a representative of the legal person.

The court can deliver a decision for application of security measures If the accused has committed crime in a state of mental disorder.

All above mentioned decisions have certain modalities during their drafting depending on their specific nature but they certainly have to contain an introduction, pronouncement and an elaboration.

In that direction, every written verdict must be fully adequate to the verdict which is pronounced.

The verdict must have an introduction, pronouncement and an elaboration.

The introduction of the verdict consists of: a notification that the verdict is pronounced in the name of the citizens of the Republic of Macedonia, the name of the court, the names of the Chairman of the Chamber, the members of the Chamber and the court clerk, the name of the accused, the crime he is accused of, whether he was present at the trial, the day of the trial and whether it was public, the names of the prosecutor, counsel, defence attorney and the authorised representative who were present at the trial and the day of the announcement of the pronounced verdict.

The pronouncement of the verdict consists of the personal details of the accused and the decision with which the accused is found guilty of the crime he is accused of or with which he is released of his charge of that crime or with which the prosecution is rejected.

If the defendant is found guilty, the pronouncement of the verdict has to encompass:

    1) for a crime for which he is found guilty, underlining the facts and circumstances which are characteristics of a crime as well as facts and circumstances on which depend the application of a certain provision of the Criminal Code;

    2) legal title of the crime and which provisions of the Criminal Code are applied;

    3) which punishments the accused is convicted of or released according to provisions of the Criminal Code;

    4) decision for a conditional conviction;

    5) decision for security measures and for deprivation of property interest;

    6) decision for calculation of the liberty deprivation in the pre- trial detention or of already served sentence, and

    7) decision on the criminal procedure expenses, on the legal property request as well as whether the legally valid verdict is to be announced by the press, radio or television.

If the accused is released of his charge or if the accusation is rejected, the pronouncement of the verdict must encompass the description of the crime he is accused of and the decision on the expenses of the criminal procedure and the legal property request, if it has been requested.

In case of a series of crimes, in the pronouncement of the verdict the court will insert the certified punishments for each separate crime and then the punishment which is pronounced for the serial crimes.

In the elaboration of the verdict the court will explain the reasons for each item of the verdict, with particular regard to those facts considered as proved or un proved, the relevant evidence which produced those facts, reasons for refusing proposals of the parties reasons which were relevant to resolving questions of law, and factors taken into consideration for the peruses of sentencing.

If the accused is released from his charge in the elaboration will be particularly noted for which of the following reasons it has been decided:

      1) if the crime he is charged with is not a crime according to law;

      2) if there are circumstances which exclude the criminal responsibility, and

      3) if it is not proved that the accused has committed the crime he is charged with.

In the elaboration of the verdict which rejects the accusation, the court will not indulge into evaluation of the main issue, but it will limit itself to the reasons for the rejection of the accusation.

The parties and the damage side can revoke their right for an appeal immediately after the verdict was pronounced. In such term the transcript of the verdict will be delivered to the party and to the damage side only in case they have requested for the transcript of verdict. If the both parties and the damage side after the verdict was pronounced revoked their right of an appeal and neither one of them had asked delivery of the verdict then the composition of the written verdict can be made without verdict explanation.

Law on Civil procedure

The dispute that is relevant subject of the procedure can be resolved by a settlement which the parties may conclude during the whole course of procedure at the court(court settlement).

The court decides with a judgment about the claim which concerns the main issue and the

secondary claims. If several claims exist, the court, as a rule, will decide on all these claims with a single judgment. If several litigations are joined because of joint discussion, and if only one litigation is ready to be concluded with a judgment, a judgment may be reached only in regard to that litigation.

There are several kinds of judgments that can be brought in the civil procedure: partial judgment, interlocutory judgment, a judgment based on confession, a judgment based on denial, judgment due to non-filing a response to a complaint, default judgment, judgement without holding a hearing, complementary judgment

In the procedure for disturbance of possession and in the procedure for the issue of a payment order the court decides with a decision.

All these above mentioned decisions have certain modalities during their drafting depending of their specific nature but they certainly have to contain an introduction, pronouncement and an elaboration.

In that sense the judgment prepared in writing must have an introduction, sentence and elaboration.

The introduction of the judgment contains a designation that the judgment is pronounced on behalf of the citizen of the Republic of Macedonia, the name of the court, the name and the surname of the president and the members of the council, respectively the individual judge the name and surname, profession and residence, respectively the dwelling place of the parties, their representatives and authorized agents, a short description of the subject of the case, the day when the main hearing was concluded, specification of the parties, their legal representatives and their authorized agents who were present at that hearing as well as the day when the judgment was reached.

The sentence of the judgment contains a decision of the court for accepting or rejecting specific claims which concern the main subject and the secondary claims and a decision about an existence or non-existence of the claim that was filed for court settlement.

In the elaboration the court will specify the claims of the parties and their assertion about the facts on which these claims are grounded, the evidence, the decisive facts which it established as well as the regulations on which the court based its judgment. In the elaboration of the judgment due to non- filing a response to a complaint, default judgment, judgment due to not-holding a hearing, the judgment based on a confession or judgment based on denial, or a judgment with which a revision was rejected as non-grounded only those reasons will be presented which justify the reaching of such judgments.

Administrative procedure

In the general administrative procedure the organ that is competent to resolve the case brings its decisions in form of a decision or conclusion while the court in the procedure for administrative disputes brings a judgment. The administrative disputes are resolved by: The Administrative court as a court of first instance (which is newly established institution in Republic of Macedonia) and the Supreme court who is deciding on the extraordinary judicial remedies.

Written decision in civil and criminal procedure

For drafting a written decision in these procedural laws has no strict articles and because of that the articles on drafting judgment are accordingly implementing.

Can each individual judge choose his own style of drafting his decision?

Each judge can choose his own style of creating and composing of the decision but he must stick to the compulsory components which are contained in the procedural law. The judgment not only must have the compulsory legal components but also must be written on clear and understandable language because if it is not a case that is a crucial violation of the provisions of the procedure which always withdraws cancelling of the judgment. According to the Law on criminal procedure there is a significant violation of the provisions of the criminal procedure if the pronouncement of the verdict is incomprehensible, full of contradiction or contradicted to the reasons for the verdict or there are no reasons for the verdict or if in the verdict the reasons for the deciding facts are not noted or that reasons are extremely incomprehensible or significantly dissenting or if for the deciding facts there is a significant contradiction between what is noted in the reasons of the verdict for the contents of the corrections or for the minutes of the statements given in the procedure and between the corrections or the minutes themselves.

The Law on civil procedure predicts that an essential violation of the provisions of the civil procedure always exist if the judgment has defects because of which it cannot be investigated, and especially if the sentence of the judgment is incomprehensible, if it contradicts itself or the reasons for the judgment, or if the judgment has no reasons at all, or the reasons for the decisive facts are

not specified in it, or these reasons are unclear or contradictory, or if a contradiction exists about the decisive facts between that which is stated in the reasons for the judgment about the contents of the documents or the minutes of the statement s given during the procedure and these documents or minutes themselves;

Besides that, during drafting of judgment judges are trying to use the legal literary language which is in official use in the Republic of Macedonia and are also trying to be clear, understandable, simple and easy, released from Latin terms and not to be complicated, without foreign vocabulary and unintelligible.

Question 2

Where the court is composed of more than one member, do judicial decisions have to be taken unanimously or a majority decision is equally effective and binding?

Law on Criminal procedure

Chamber's resolutions are brought after oral advising and voting. A resolution is brought when the majority of the members of the Chamber vote for it. When votes on separate questions are divided and the majority of votes is not accomplished, the questions will be separated and voting will be repeated until a majority of votes is accomplished. If the majority is not accomplished in this manner, the resolution will be reached in the way that votes which are the least favourable for the accused will be added to the votes which are less favourable until a majority is accomplished. The members of the Chamber cannot refuse to vote on questions set by the Chairman of the Chamber, but a member of the Chamber who has voted for the accused to be released or for the verdict to be annulled but has been in the minority group is not obliged to vote for the sanction. If he does not vote, it will be comprehended as if he has agreed with the vote which is on behalf of the accused.

Law on Civil procedure

The decisions of the council are made after consultation, by voting. A majority of votes is necessary for each decision of the council. The members of the council may not refuse to vote on issues which the president of the council presents. A member of the council who remained in minority during the voting on some former issue may not refrain from voting on an issue which needs to be decided later. Regarding certain issues which need to be decided, if the votes are split on several different opinions, so that not one of them has a majority, the issues will be divided and the voting will be repeated until a majority is achieved. In regard to the level of the amount of money or quantity, if the votes are split on more than two opinions, the reasons for each opinion will be reviewed again, and if after this a majority cannot be achieved again, the votes that were given to the largest amount of money or quantity will be added to the votes for the next smaller amount of money or quantity, until a majority is achieved.

Also in the general administrative procedure when the case has to be resolved by organ composed of several members as well as in the procedure for administrative disputes when the court has to decide in chamber, the decision is brought with majority of votes.

This means that if the decision is not brought unanimously, the decision brought with the majority of votes is also effective and binding.

In a two or even more member panel, does the president or most senior judge have a second or casting vote?

In our procedural laws does not exist a division on casting and second vote. That means that the president’s vote and votes of the members of the chamber no matter if they are professional judges or non judges (lay judges) their votes have an equal importance.

The president of the chamber chairs the consultation and voting, and votes as the last one.

He/she pays attention that all the issues are reviewed comprehensively and completely.

Question 3

Do judicial decisions have to deal with all points raised by the parties or their lawyers or is a synthetic or concise approach considered sufficient?

The judicial decisions must contain all evidences suggested by the parties or their lawyers during the procedure as well as the reasons why the court has accepted them or why has refused them but the decision does not have to contain the all procedural requests and suggestions that the parties have stated during the procedure but only those predicted in the procedural law.

Law on Criminal procedure

The verdict may refer only to the person who is accused and the crime which is the case of the prosecution contained in the submitted prosecution act i.e. at the trial altered or expended prosecution act.

The court is not bound to the proposals of the prosecutor in view of the judicial evaluation of the crime.

The court finds the verdict only on the basis of the facts and evidence which are presented at the trial.

The court is obliged conscientiously to evaluate each evidence separately and in connection to other evidence and on the grounds of such an evaluation to derive a conclusion whether a certain fact is proved.

There is a significant violation of the provisions of the criminal procedure: if the court violated the regulations of the criminal procedure on the question whether there is prosecution by the authorised prosecutor or proposal by the damaged i.e. an approval by the competent body; if the court with its verdict did not resolve the case of the prosecution completely; if the verdict is based on evidence according to which due to the provisions of this Law the verdict cannot be based unless in view of other evidence it is obvious that even without that evidence the same verdict would be brought; if the prosecution is exceeded.

Law on Civil procedure

In the civil procedure, the court shall decide within the limits of the claims that are determined in procedure.

The parties may freely dispose over the claims placed by them during the procedure. They may renounce their claim, acknowledge the opponent's claim and they can settle. The court shall not acknowledge the disposals of the parties:

    1. which are in contradiction with the forced regulations;

    2. which are in contradiction with provisions from international agreements that have been ratified in compliance with the Constitution of the Republic of Macedonia ; and

    3. which are contrary to morality.

The court shall decide on the claim, as a rule, based on an oral, direct and public hearing.

The court shall be also authorized to establish the facts which the parties did not present, and to dispose the evidence that the parties have not proposed if it appears from the results of the hearing and the disposition that the parties are inclined towards disposing over claims which they cannot dispose over, but it can not base its decision upon facts and evidence for which the parties were not given the possibility to express themselves.

The court shall decide which facts it will consider as proven, according to its own opinion, based upon a conscientious and careful evaluation of each piece of evidence separately, and of all the evidence together, as well as upon the results from the overall procedure.

There is an essential violation of the provisions of the civil procedure if: contrary to the provisions from this Law, the court based its decision upon a prohibited disposal by the parties; with an illegal action, and especially by omitting the service the party was not given the chance to discuss in court; a decision was made on a claim for which there in an ongoing litigation, or for which a judgment that has become final has already been reached earlier, or for which a court settlement has already been concluded.

Question 4

In general terms, how is a first instance judicial decision drafted? (For example, does the decision state first the factual background, followed by the evidence, its evaluation and finally the application of the legal principles to the accepted facts?)

Yes, as a rule it is a model of drafting of the decisions which comes out from the legal provisions about the order in making decision.

Law on criminal procedure

During the resolution, the first issue which is considered is whether the court has competence, whether it is necessary the procedure to be completed, as well as other previous questions. When a decision on previous questions was brought then the main issue decision should be brought.

During the bringing of the resolution on the main issue, first it will be voted whether the accused has committed crime and whether he is criminally responsible, and then it will be voted on the sentence, other criminal sanctions, criminal procedure expenses, legal property requests and other questions that need to be decided on.

If anyone is accused of several crimes, first it will be voted on his criminal responsibility and on the sentence of each of those crimes and then on the unique sentence for the crimes.

The verdict must have an introduction, pronouncement and an elaboration.

The introduction of the verdict consists of: a notification that the verdict is pronounced in the name of the citizens of the Republic of Macedonia, the name of the court, the names of the Chairman of the Chamber, the members of the Chamber and the court clerk, the name of the accused, the crime he is accused of, whether he was present at the trial, the day of the trial and whether it was public, the names of the prosecutor, counsel, defence attorney and the authorised representative who were present at the trial and the day of the announcement of the pronounced verdict.

The pronouncement of the verdict consists of the personal details of the accused and the decision with which the accused is found guilty of the crime he is accused of or with which he is released of his charge of that crime or with which the prosecution is rejected.

If the defendant is found guilty, the pronouncement of the verdict has to encompass:

1) for a crime for which he is found guilty, underlining the facts and circumstances which are characteristics of a crime as well as facts and circumstances on which depend the application of a certain provision of the Criminal Code;

2) legal title of the crime and which provisions of the Criminal Code are applied;

3) which punishments the accused is convicted of or released according to provisions of the Criminal Code;

4) decision for a conditional conviction;

5) decision for security measures and for deprivation of property interest;

6) decision for calculation of the liberty deprivation in the pre- trial detention or of already served sentence, and

7) decision on the criminal procedure expenses, on the legal property request as well as whether the legally valid verdict is to be announced by the press, radio or television.

If the accused is released of his charge or if the accusation is rejected, the pronouncement of the verdict must encompass the description of the crime he is accused of and the decision on the expenses of the criminal procedure and the legal property request, if it has been requested.

In case of a series of crimes, in the pronouncement of the verdict the court will insert the certified punishments for each separate crime and then the punishment which is pronounced for the serial crimes.

In the elaboration of the verdict the court will explain the reasons for each item of the verdict, with particular regard to those facts considered as proved or un proved, the relevant evidence which produced those facts, reasons for refusing proposals of the parties reasons which were relevant to resolving questions of law, and factors taken into consideration for the peruses of sentencing.

If the accused is released from his charge in the elaboration will be particularly noted for which of the following reasons it has been decided:

1) if the crime he is charged with is not a crime according to law;

2) if there are circumstances which exclude the criminal responsibility, and

3) if it is not proved that the accused has committed the crime he is charged with.

In the elaboration of the verdict which rejects the accusation, the court will not indulge into evaluation of the main issue, but it will limit itself to the reasons for the rejection of the accusation.

The parties and the damage side can revoke their right for an appeal immediately after the verdict was pronounced. In such term the transcript of the verdict will be delivered to the party and to the damage side only in case they have requested for the transcript of verdict. If the both parties and the damage side after the verdict was pronounced revoked their right of an appeal and neither one of them had asked delivery of the verdict then the composition of the written verdict can be made without verdict explanation.

Law on civil procedure

The court shall asses, ex officio, immediately after receiving the claim, whether it is competent, and in what composition it is competent.

The introduction of the judgment contains a designation that the judgment is pronounced on behalf of the citizen of the Republic of Macedonia, the name of the court, the name and the surname of the president and the members of the council, respectively the individual judge the name and surname, profession and residence, respectively the dwelling place of the parties, their representatives and authorized agents, a short description of the subject of the case, the day when the main hearing was concluded, specification of the parties, their legal representatives and their authorized agents who were present at that hearing as well as the day when the judgment was reached.

The sentence of the judgment contains a decision of the court for accepting or rejecting specific claims which concern the main subject and the secondary claims and a decision about an existence or non-existence of the claim that was filed for court settlement.

In the elaboration the court will specify the claims of the parties and their assertion about the facts on which these claims are grounded, the evidence, the decisive facts which it established as well as the regulations on which the court based its judgment. In the elaboration of the judgment due to non- filing a response to a complaint, default judgment, judgment due to not-holding a hearing, the judgment based on a confession or judgment based on denial, or a judgment with which a revision was rejected as non-grounded only those reasons will be presented which justify the reaching of such judgments.

The pronouncement is an essential part of the judgment while the elaboration contains the reason for each decision consisted in the pronouncement. The elaboration contains factual background - a part which is a description of the event accompanied by evaluation of the evidence for vital facts upon which the judgment is based; the court evaluates each piece of evidence separately, and all the evidence together as an entirety and then makes legal summation of the factual description of the provisions from the material and procedural law (legal evaluation of the facts, legal qualification).

How in general terms is an appeal /supreme court decision drafted? Is the appeal in your country by way of rehearing the case or not?

Law on criminal procedure

There are no certain provisions about drafting the decision of the appeal/supreme court.

The second instance court may at the session of the Chamber or on the basis of a held trial reject the appeal as undue or as not allowed or reject the appeal as unjustified and certify the verdict of the court of first degree, or terminate the verdict and direct the case to the first degree court for a re- trial and for another decision or alter the first degree verdict. On all appeals against the same verdict, the second instance court decides with one decision.

Law on civil procedure

The court of second instance, at a session of the council or based on a conducted hearing, may refuse the appeal as being untimely, incomplete or as not allowed, to dismiss the appeal as unfounded, and to confirm the judgment of the first instance, to vacate this judgment and refer the case to the court of first instance for renewed litigation, to vacate the judgment of first instance and to reject the complaint, or to alter the first instance judgment. The court of second instance may vacate the judgment also when the party demands that it is altered, and it may alter the judgment even though the party requested that it is vacated.

The second instance court decision is also composed of introduction, pronouncement and elaboration. The pronouncement contains the decision that the court has delivered about the complaint as well as decision whether the first instance court decision is confirmed, amended or quashed. Regarding the elaboration there is a specific content because the court is giving the essence of the judgment delivered by the first instance court (the decisions contained in the pronouncement), the content of the complaint, then limits on the review of the first instance judgment and the court also ex officio examines whether there is any violation of the provisions of the criminal procedure and whether the Criminal Code is violated against the defendant.

Complaint

The complaint is a regular legal remedy which can be submitted against judgment or a decision brought by a court of first instance. The complaint can be a base for rehearing a case if the apllate court finds that in the procedure in front of the first instance court there is a significant violation of the provisions of the procedure or if the court considers that due to an incorrect or incomplete certified factual situation a new trial before the first instance court is to be ordered.

The first instance court is obliged to accomplish all procedural acts and to deal with all disputing matters to which the second instance court has pointed out in its decision.

The new item in the Law on civil procedure

If a complaint has been submitted against a judgment which once has bee already cancelled, there is a limit how many times the court can decide on the same case. When at a session of the council it will be determined that the judgment against which an appeal is filed is based on essential violation of the provisions of the civil procedure or incorrectly and incompletely established factual situation, and the judgment has been vacated already, the court of second instance will schedule hearing and will make meritorious decision.

Question 5

Is there a difference in the way a judgment is drafted according to the subject matter (civil, criminal, administrative)?

The way of drafting judgments whether in civil or criminal case is the same, their structure is identical, they contain the same elements (introduction, pronouncement and elaboration) but the difference is in their content i.e. in the subject matter which is regulated with the decision. The decision brought in the general administrative procedure has similar structure only that in this procedure judgments do not exist but only decisions. In the procedure for administrative disputes there is a judgment with the similar structure as the civil/criminal judgment but the subject matter is different.

Question 6

Could you describe precisely how the decision is transmitted to the parties?

Law on criminal procedure

Resolutions are announced orally to the interested persons if present, and by delivering certified transcript if absent.

The judgment which is pronounced has to be prepared in a written form within the time of 15 days after the verdict is announced, and in an exceptionally complex situation within 60 days; whose deadlines can not be over stepped.

The verdict is signed by the Chairman of the Chamber and the court clerk.

The certified copy of the verdict will be delivered to the prosecutor, to the accused and the counsel.

To the accused, to the private prosecutor and to the damaged as a plaintiff an instruction will also be delivered for their right to an appeal.

A certified copy of the verdict with instruction for the right to an appeal will be delivered to the damaged by the court if he has a right to an appeal, to the person whose object was confiscated with the verdict as well as to the legal person to whom deprivation of the property interest is pronounced. To the damaged who has no right to an appeal it will be delivered a copy of the verdict with the instruction on his right to request for a restoring into previous condition. The legally valid verdict will be delivered to the damaged if he requires it.

Law on civil procedure

The court is bound to its judgment immediately after it is announced. The judgment has effect towards the parties from the day it is delivered to them.

The court reaches and announces the judgment on behalf of the citizens of the Republic of Macedonia. When the main hearing is held before a council, the judgment is reached by the president of the council and the members of the council who participate in the hearing for which the main hearing has been concluded.

The judgment is reached immediately after the conclusion of the main hearing at the minutes and is announced by the individual judge respectively the president of the council. In more complex cases, the court may postpone the reaching of a judgment for 15 days from the day the main hearing is concluded. In such a case, within the same time limit, the court will hold a hearing on which the judgment will be announced. The court is obligated to schedule the hearing for announcing the judgment at the hearing when the main hearing is concluded. The hearing at which the judgment will be announced will be hold regardless whether the parties were informed about it and whether they were present at that hearing.

When the judgment is announced, the president of the council respectively the individual judge will publicly read out the sentence and he/she will state briefly what the reasons for reaching that judgment were. During the announcement of the judgment, it may be reported that the court had decided to judge about the estimation of the expenses additionally. In such a case, the estimation of the expenses is performed by the president of the council, and the decision is entered into the written composition of the judgment. If the public was excluded at the main hearing, the sentence of the judgment will always be read out publicly, and the court will decide whether and to what extent the public will be excluded during the announcement of the reasons for the judgment.

Law on general administrative procedure

In the general administrative procedure the organ that brought the decisions delivers them to the parties in a written form. If the organ not manages to deliver the decision to the parties in the legal terms the decision will be delivered to them by post mail. If the delivery on these two ways can not be made the decisions will be delivered to the parties by public announcement made trough the daily newspaper that is distributed on the whole territory of the Republic of Macedonia.

Law on administrative disputes

If a public hearing was hold, the court will immediately after the conclusion of the hearing announce the judgment together with the most important reasons. In complex cases the court can postpone the announcement of the judgment but in a term of 8 days shall reach the judgment.

If after conclusion of the hearing the court can not pronounce the judgment because he first has to establish such a fact for which elaboration is not necessary a new public hearing, the court will reach a judgment without holding a hearing in a term of 8 days after he has established that fact.

The court will give to the parties a certified copy of the judgment.

Is the judicial decision binding only on the specific litigants or does it affect the public in general?

In the criminal cases the verdict may refer only to the person who is accused and the crime which is the case of the prosecution contained in the submitted prosecution act i.e. at the trial altered or expended prosecution act but the sanction pronounced with the judgment has its educational effect not only to the accused but also to every other persons in order to stop them from committing crimes in the future.

In the civil cases the judgment effects only the parties in the dispute between who a certain civil legal relation is being regulated and they are obligated to act in a way as it is predicted in the judgment within the term determined by the court in the judgment.

Does your country acknowledge a difference in judicial decisions in personam and in rem?

Yes, there is a difference. The decisions of the first instance courts, as well as those of the appellate courts and of the Supreme court (who are deciding on legal remedies against decisions of first instance courts and second instance courts) are decisions in personam which means that they effect only the parties pointed in the judgment while the decisions which are brought by the Constitutional court has effect in rem which means that they effect to all citizens of the Republic of Macedonia and are implementing on entire territory of the Republic of Macedonia.

Question 7

How is a judicial decision enforced in your country? Does your country allow for contempt proceedings against a litigant who does not comply with a decision/order of the court?

In civil judgments the court may order the defendant to perform a specific doing, only if this is due before the closing of the main hearing and will determine a time limit within which the party is obligated to perform that action. If in this term determined by the court the party doesn’t voluntary accomplish the obligation given by the judgment the next approach is forcefully enforcement of the judgment. The forcefully execution of the judgment is taken by executors who are introduced with the new Law on executive procedure.

The execution of sanctions in the criminal cases is organized by judge for execution of sanctions. The court that reached the first instance decision for passing the sanction, is obliged to send the decision to the competent court according to the place of permanent or temporary residence of the convicted person immediately but no later than 3 days after the decision will become executive. The judge for executing the sanctions is obliged to start with the execution of the sanction by taking the legally determined actions and measures immediately after the reception of the decision.

The Directorate for Execution of Sanctions is responsible for the affairs of execution of sanctions. The Directorate for Execution of Sanctions organizes, executes and supervises the execution of the imprisonment sentence, the juvenile imprisonment, the alternative measures: protective supervision pronounced with a probation verdict or probation dismissal, community work and house arrest, as well as correctional detention as an educational measure. The Directorate is a body within the Ministry of Justice having a legal entity authorization.

If the defendant is convicted to a fine penalty, it will be noted in the verdict the period within which the fine penalty is to be paid and alternatives by which the fine penalty will be charged in case the fine cannot even be forcefully charged.

Question 8

Are judicial decisions handed down/announced in open court? Always or can the public/journalists be excluded - If so on what grounds?

The judgments in the criminal and civil procedure are brought and announced on behalf of the citizens of the Republic of Macedonia. The judgments are pronounced publicly i.e the president of the chamber will publicly pronounce the verdict and will briefly announce the reasons for the verdict. The public can be excluded during the trial but the judgment i.e. the pronouncement of the judgment will always be read at a public session. The Chamber will decide whether and to which extent the public will be excluded during the announcement of the reasons for the judgment.

The public is a rule in a procedure while its exclusion is exception from the rule predicted with the law on criminal procedure that “everyone charged with a criminal offence shall have the right to a fair and public hearing within a reasonable time and before a competent, independent and impartial tribunal, established by law” and the one predicted in the law on civil procedure that “the court shall decide on the claim, as a rule, based on an oral, direct and public hearing”. This comes as a result of adopting the international standards for fair hearing within a reasonable time in our procedural laws. Because of this, the grounds on which the public can be excluded are precisely defined in the procedural laws. For exclusion of the public the chamber decides with a decision which must be elaborated and publicly announced (in the criminal procedure for exclusion of the public the opinion of the parties has to be heard).

Law on Criminal procedure

From the beginning to the end of the trial the Chamber may at any time ex officio or on the proposal on the parties but always after their hearing exclude the public from the trial or from a part of it if it is necessary a secret to be kept, the public order to be restored, the morality to be protected, the personal and private life of the accused to be protected, the witness or the damaged to be protected and the interests of the minor to be also protected.

The exclusion of the public does not refer to the parties, the damaged, their representatives and the counsel.

The Chamber may allow at the trial where the public is excluded to be present certain officials, scientific and public workers, and on the request of the accused may also be present his marital i.e. illegitimate spouse and his close relatives.

The Chairman of the Chamber will warn the persons who attend the trial where the public is excluded that they are obliged to keep as a secret everything that they learn at the trial and he will underline that any revealing of a secret is a crime.

Civil procedure

The chamber may exclude the public during the whole main hearing, or for a part of it, if this is demanded in order to protection of the official, business or personal secret, the interests of public order, or for reasons of morality. The chamber may also exclude the public in the case when, even with the measures for maintaining order, foreseen by this Law, an undisturbed hearing cannot be provided. The exclusion of the public does not refer to the parties, their legal representatives, the authorized agents and the involved persons.

The Chamber may permit that certain official persons are present at the main hearing where the public is excluded, as well as scientific and civil servants, if this is of interest for their service, or for the scientific or public activity.

Upon the request from the party, the court may permit that a maximum of two persons are present at the hearing, which will be specified by it.

The president of the chamber shall warn the persons present at the hearing where the public is excluded that they are bound to keep as secret everything they have heard at the hearing, and he/she will point out the consequences from disclosing a secret.

Law on general administrative procedure

The hearing in the general administrative procedure is public. The official person who is guiding the procedure may exclude the public during whole time of the hearing or just of a part of a hearing if it is necessary for reasons of morality or public security, if there is a serious and direct danger from disturbing the hearing, if there has to be elaborated for relations in some family or if there will be presented facts which are professional, official, scientific or art secret. For the exclusion of the public the official person decides with a conclusion which must be elaborated and publicly announced. The exclusion of the public does not refer to the parties and their legal representatives.

The official person who is guiding the procedure may permit that certain official persons, scientific and public servants are present at the main hearing where the public is excluded, if this is of interest for their service, or for the scientific or public activity. He/she shall warn the persons present at the hearing where the public is excluded that they are bound to keep as secret everything they have heard at the hearing.

Law on administrative disputes

On administrative disputes the court as a rule decides on non public session. The court will hold public hearing:

    - because of the complex of the subject of the administrative dispute

    - if there is a need the situation of the matter to be better cleared up

    - when is establishing a factual situation

    - when derives evidences

The absence of the party from the hearing doesn’t stop the court to proceed with its work. Because of the absence of the parties it can not be considered that they have called off their claims, but their written request will be read.

Question 9

To what extent do judicial decisions in your country take into account personal data protection legislation (i.e. publication of litigants’ names, other personal details etc)?

The court may decide to exclude the public from the hearing also for reasons of keeping personal secrets of the parties, when it will be discussed their personal and intimate life as well as the court can exclude the public during announcement of the reasons of the judgment. In complex judicial cases where the state interest is concerned (anticorruption, organized crime ect.) as a rule the judgments are published in the media, in this cases the names of the parties and other details about the cases are published also. These trails are also covered by report from all media including TV recording.

As a rule, the judgment doesn’t have to contain the number of birth registry but they contain other personal data for the accused or litigants because that is predicted in the procedural laws regarding the obligated elements of the judgment.

The Law for protection of personal data contains provisions about protection the personal data in the court decisions delivered in criminal procedure. According to this law, processing of personal data about crimes, sanctions, security measures for committed crimes can be made only by competent state organs in accordance with the law. The person - inspector who will process personal data about crimes, sanctions, security measures for committed crimes contrary to the manner predicted with this law as mentioned above will be charged with penalty of 900 euros.

Question 10

Are judicial decisions available to persons or authorities other than the litigants themselves? If so on what terms and prerequisites?

Decisions of the basic and appellate courts are available to the parties, their legal representatives and their authorized persons as well as to persons who have a legal interest from those decisions but they have to make probable the existence of that legal interest. The decisions are also available to the Judicial Council regarding the conducting of disciplinary procedure for judge or regarding the complaints and requests of citizens or legal entities about the work of judges or courts. Decisions are also available to the Ministry of Justice when it is deciding on complaints or request from citizens or legal entities and they are also available to the ombudsman when he is researching for violation of rights of the parties in the procedure with unfounded postpone of the procedure.

Question 11

Are judicial decisions published/available on the internet? If so, are all decisions available or only appeal or supreme court cases?

Neither decisions of the appellate courts nor the decisions of the Supreme Court are available on Internet because many courts do not have access to Internet but the implementation of the strategy for IT reforms is in progress which will enable access to public information and case law. For now only decisions of the Constitutional court are available on the Internet on its web page, while decisions of the appellate courts and Supreme Court are published in reference collection of judicial decisions which are interesting for the judicial establishment.

Part II: Evaluation of the judicial decision

Question 12

Is a system of evaluation of quality of justice in force in your country?

Yes, this system is in force in our country. The base of this system is set with the Law on courts and Law on Judicial Council which start point are judges who are evaluated on annual level by the Judicial Council regarding their professionalism, efficiency, number of resolved cases, number of confirmed, amended or quashed court decisions, their independence and impartiality in conducting the procedures, respect of the principles of fair trail and trial within reasonable time. The violation of all this parameters can lead to dismissal of a judge form his function. This legal step makes big contribute for improving of the quality and efficiency of judges and with that the level of quality of justice is raising.

The Law on courts is defining what will be considered as unprofessional and in bad faith exercise of the judicial function and those are the parametars which the Judicial Council is evaluating. Namely, Unprofessional and in bad faith exercise of the judicial function shall imply unsatisfactory professionalism of the judge having an effect on the quality and efficiency of the work if:

    - for two successive years the Judicial Council of the Republic of Macedonia has appraised that the judge provides unsatisfactory results, especially in the light of the untimely adjudicating, inefficient and slow acting in the conduct of court proceedings, number of confirmed, amended or quashed court decisions;
    - Unprofessional, untimely and inattentive exercising of the judicial office in conducting the court proceedings on specific cases;
    - Biased conduct of the court proceedings, especially in view of the equal treatment of the parties;
    - Acting upon cases contrary to the principle of trial within reasonable time, or respectively delay of the court proceedings without justified grounds;
    - Unauthorised issuing of classified information;
    - Public presentation of information and data on court cases on which no final court decision has been taken;
    - Deliberate violation of the rules for fair trial;
    - Misuse of office or exceeding the official authority;
    - Violation of regulations or other kind of violation of the autonomy of judges during trial;
    - Severe violation of rules of the Judicial Code, undermining the reputation of the judicial office.

Also there are provisions regarding the work of the president of the court. The court president shall be dismissed from the presidential function when the Judicial Council of the Republic of Macedonia shall within an instigated procedure identify fulfilment of any of the conditions below:

    - misuse of office and exceeding official authorisations;
    - illegal and unintended disposal of the funds of the court;
    - failure to exercise or untimely exercising of the works of the judicial administration;
    - influence the independence of judges in the light of deciding on specific cases;
    - violation of the rules for the case assignment; and
    - failure to implement the work program

Until know no strategy for evaluation of the quality of justice has been brought, but the Government and Ministry of justice are considering this issue. The competence for evaluation of the quality of justice is divided between Judicial Council, Ministry of Justice and Supreme court who is deciding on extraordinary legal remedies as well as about managing wtih the financial resources of the judicial budget.

The annual report about the work of each judge and each court are delivered to the Ministry of Justice, Judicial council and Supreme Court.

The Judicial Council is evaluating the work of each individual judge and of the courts. Among numerous functions of election and dissmissal of judges, the Judicial Council follows and evaluates the work of judges, decides about disciplinary responsability of judges, reviewing and evaluation fo the quarterly and annual reports for work of courts. A member of the Judicial council on conclusion of the Council may has an insight into the judge’s work and submit an report to the Council regarding the results of it.

The Ministry of Justice also has its own competences in this sense. The work of judicial administration shall be carried out by the Ministry of Justice. The Ministry of Justice shall communicate with the president of the respective court regarding the work of the judicial administration.

The scope of work of judicial administration shall include ensuring general conditions for exercising the judicial power, in particular, developing laws and other regulations in the area of the organisation and work of the courts and the procedures before courts, adopting the court rules of procedure, taking care of the education and vocational training of staff, providing the material, financial, security, office room and other means and conditions for the work of the courts, carrying out work in international legal assistance, enforcing sentences imposed for punishable acts, gathering statistical and other data about the work of the courts, supervising the efficient conduct of court work and the implementation of the Court Rules of Procedure, supervising the implementation of the regulations for court deposits and guarantees, examining the complaints by citizens to the work of the courts related to the procrastination of court proceedings or to the work of court services, as well as other administrative tasks and matters stipulated by law.

The Minister of Justice shall adopt the Court Rules of Procedure upon the previous opinion of the plenary session of the Supreme Court of the Republic of Macedonia.

The Court Rules of Procedure shall regulate the internal organisation of the courts, the manner of work of the courts, the keeping of the registration books and other books, handing the acts and forms, the work for international legal assistance and acting upon complaints, summoning and assigning lay judges, appointing full-time court translators, interpreters and experts, keeping statistics and records, and the professional upgrade of the staff, the rules for the special markings on court vehicles, the IT system in the courts, as well as other matters pertaining to the work of the courts.

The Ministry of Justice shall execute the supervision of the application of the Court Rules of Procedure.

The Supreme Court has its competences regarding the judicial budget, namely the President of the Supreme Court is a President of the. The Supreme Court on its general session is reviewing the questions regarding the work of courts and also submits a request for initiation of disciplinary procedure and for establishing unprofessional and in bad faith exercise of the judicial function.

Regarding the managment and use of the financial resources of the courts the Judicial Budget Council is competent to deliver decisions in this direction. This Council is composed of: President of the Supreme Court who is so far President of this Council, also members are the Ministry of Justice, Director of the Academy for Training of Judges and Public Prosecutors, the President of the Administrative Court, the Presidents of the three appelate courts and the Presidents of three basic courts upon system of rotation. According to the proposal for the new Law on Judicial Budget Council, the managing with the judicial budget will be moved to the competence of the Judicial Council of the Republic of Macedonia.

Within the Judicial Counicl, there has been brought a Regulation on following and evaluation of the work of judges. The legal base for following and evaluation of the work and behavior of a judge are the Constitution of the RM, Law on courts, Law on Judicial Council, laws which are regulating the judicial procedures and the Code on judicial ethics. Subject of evaluation will be the whole work and behavior of a judge in performing his/her judicial function, hie relations with the colleguages and employees in the court, his behavior in accordance with the Code on judicial ethics as well as international acts regarding this question. The evaluation of a judge includes the competences that he/she is accomplishing as a judge from aspect of legal and correct performance of the duties as well as independent, impartiality and professionalism in performing of the judicial function. The review of the work of a judge will continuous and systematic. The evaluation of the work of a judge is done by quantitative and qualitative criteria and it can be done as a regular or extraordinary evaluation. The regular evaluation is done once a year regarding the review of the annual report for the work of the court and judges while the extraordinary evaluation id done in procedure of election or promotion of a judge, in a procedure of election of president of a court, upon a judge’s request, upon a request of a president of the court where the judge is performing the judicial function, upon a request of the president of the court from higher instance and upon initiative of the Judicial Council.

There opinions within the judiciary that this question (evaluation of judges) has to be regulated with a Law in order the independence of judges to be protected.

Question 13

Does this evaluation include/envisage the evaluation of the quality of judicial decisions?

According to the Constitution of the RM and Law on courts a judge cannot be held criminally liable for expressed opinion and decision made while delivering court decisions.

Complaints concerning the exercise of the judicial function must be reviewed promptly and fairly and in closed sessions by the competent bodies where they have been submitted.

The judge, against whom a complaint is submitted, has the right to respond.

A procedure for compensation for damages or another procedure by a party dissatisfied with the decision of a judge may not be instituted against the judge or the lay judge.

The Republic of Macedonia shall be liable for the damage that a judge or a lay judge has caused to citizens or legal entities by unlawful work in the exercise of their function. When the damage is caused by a serious and inexcusable violation of the law, for which a dismissal procedure is instigated, the Republic of Macedonia may claim from the judge, by pressing charges against them, refunding of the amount paid to cover the damage, in the amount to be specified by court in line with the principle of equity.

One of the parameters of evaluation is certainly the quality of the judicial decisions and that is primarily done trough review of the monthly, quarterly and annual reports on number of resolved cases and especially on number of confirmed, amended or quashed court decisions which are prepared by each judge individually.

Question 14

If your country does evaluate the quality of judicial decisions by means of a specific system, could you specify the latter:

    · legal basis: Law on courts, Law on Judicial Council (there are also by law in this area such as Regulation on following and evaluation of the work of judges, Regulation of the work of the Judicial Council of the Republic of Macedonia)

    · identification of the agencies that are responsible for the process: Judicial Council of the RM - in charged to evaluate the professionalism of judges and in good faith exercise of the judicial function; non governmental and other similar organizations as observers of conducting of judicial procedures; ombudsman - in charged for protection of rights of the parties during the judicial procedures

    · parameters that are evaluated: delivering the decisions on time, efficiency, number of resolved cases, number of confirmed, amended or quashed court decisions, conscientiously performance of the judicial function, (im)partiality during conducting the judicial procedure, respect of the principle of trial within reasonable time, issuing of classified information, public presentation of information and data on court cases on which no final court decision has been taken, respect of the rules for fair trial, judge’s independence during the trial

    · methods by which each parameter is evaluated: monthly, quarterly and annual reports for the work of judges regarding the number of resolved cases, the average length of the procedure, number of resolved cases, number of confirmed, amended or quashed court decisions; reports from organizations that have observed the judicial procedures such as Coalition for fair trail which is actively included in observing of the judicial procedures and regularly publishes reports for anomalies that have been noticed during implementation of the international standards for fair trail.

The criteria for evaluation of the quality of a judge, the level of amended or quashed court decisions are not always precise and authoritative especially when decisions of the second instance courts are final and not liable to revision of a third instance.

Question 15

What are the advantages and disadvantages discussed in your country as far as the evaluation of quality of justice is concerned?

· advantages: creation of clear distinction between judges regarding the quantity and quality of their work and making decisions, establishing of the merit system in the Law on Judicial Council and Law on courts by defining the conditions for promotion of judge in appellate and Supreme Court - among all other conditions the candidate for judge in these courts must have confirmed results in his/her work, leaving the system of equal evaluation and political belonging; the candidate must have good reputation, with highest professional qualities, professional knowledge, participation in continuous training, the proportion achieved between undertaken and expected scope of the work, the ability for resolving the legal questions, protection of the reputation of the judge and the court, way of conducting the procedure, relations and communication with the parties, prevention of independence, impartiality and importance of the work, ability for oral and written expression trough drafting the decisions and other acts, to undertake additional work trough mentorship or education, the relations with the associates etc.

· disadvantages: unclear defined criteria and categories which may imperil the judicial independence and conducting of disciplinary procedures motivated by political reasons (extremely delicate are procedures against presidents of the courts because still exists an opinion that their election is made politically)

Question 16

In the opinion of the judiciary in your State, which factor could help to improve the quality of decisions?

- Continuous education - trainings on material but also on procedural law - improving of the process of delivering of the decisions, case management, techniques of drafting of decisions, training on improving of the skills for easy and clear language in judgments, IT, legal research.

- Changes in the legislative in direction that will enable facility of the content of judgments because they contain too much elaboration and same things are repeating several times since the law is predicting so. That leads to unclear judgment and reducing of its effect. It will be useful to increase the number of cases where judgment doesn’t have to contain elaboration (such possibility for now exists in criminal procedure only if parties and the injured refuse immediately after announcement of the judgment to use their right to complaint, in this case the judgment doesn’t have to contain an elaboration; some facilitates exists when court brings a verdict without main trail and in this case pronouncement of the verdict will content the decision about legal property claim, if there is that kind of proposal. In the reasoning will be mentioned only evidences that will justify bringing of the verdict without a main trial).

- access to rich domestic (Commentaries of laws) and comparative literature especially for International law and EU law, possibility for internet connection, training for research of data base, learning of foreign languages, study visits, meetings and exchange of experiences with foreign colleagues ( very importan is the role of the Academy for Training of Judges and Public Prosecutors which is involved in the EJTN’s exchange programme and in Lisbon network, the Academy impelemnts continuous training for total number of 2048 judges, 681 public prosecutors and had organized and realized 34 study visits for judges, prosecutors, educators, employees and organs of the Academy.

- better conditions for work, courts to be better equipt, instaling of network connection, improving of the financial situation of courts and judges.

Question 17

Is a system of evaluation of quality of each of the following in force in your State:

· professional performance of police? yes √ no □

· professional performance of public prosecution services? yes √ no □

· professional performance of lawyers? yes √ no □

· enforcement of judgements? yes √ no □

· efficiency of ministry of justice services in general? yes √ no □

· quality of legislation? yes √ no □



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