“Facial-lifting” judicial reform

Kostadin Bogdanov

Generally accepted opinion in highly developed democratic countries is that the independence of the judiciary and the administration of justice are the basic social foundation upon which their development relies. Condition without which it is impossible to function. Or, better said, there is no poor country in the world, which at the same time features a fully developed independent, impartial and expert judicial authority. But there is also reason for it. It is precisely this power that sometimes represents the last bumper of democracy, as well as a permanent protector of the rule of law and of respect for human rights and freedoms as pillars of a civilized society. Without democracy, the rule of law and the protection of human rights, there is no freedom. Without freedom there is no prosperity. Without prosperity there is no life. And life just doesn’t seem to come to us…

“Life” began with the promise of a general re-election of all divisions of justice as one idea for ​​top reform in the area. Then, it continued with the formation of several councils and commissions with competencies that the members themselves did not understand. Therefore, some of them rightfully left. The three (perhaps four) Judicial Reform Council meetings resulted in the adoption of a multi-year “facial-lifting” strategy for reforming the judiciary, which in part is an expression of the personal frustration of some of its members. Today we are witnessing the formation of another council whose task will be to oversee the implementation of the result of the previous council. Probably in short time, there will be a new council that will have the task of overseeing what the current council has done after the conclusions of the previous council that no longer exists. And this will go on in circles.

But instead of cosmetics, a serious government should focus on serious judicial reform. It is currently the biggest priority of the internal plan for the state. A serious government first needs to do is to free judges from their de jure dependence, both horizontally and vertically, both from the executive and from the judiciary itself. This also implies the financial independence of the judiciary within the legally projected budget rate, which, unfortunately, has never been fulfilled. The manner of selection, promotion, responsibility and dismissal of judges must be harmonized with European practice as soon as possible. The opinion of the Venice Commission in that part can be of tremendous value. Judge’s accountability procedures must be precise. Judges’ liability bases must be clear and predictable. For their independence. Due to the quality of the administration. But, contrary to that, the Government, with the proposed amendments to the Law on Courts, makes additional confusion in the procedures for the responsibility of the judges. One element of the “major” reform of the new Strategy, for example, will be the possibility for the judge to be dismissed because of the failure to do so?! It is truly incomprehensible and contradictory the strategy for greater independence of the judiciary, which the light transgressions of the current law punishable by a disciplinary measure, in the newly proposed law, foresees as grounds for dismissing the judges as the most severe measure. Substantial reform in the opposite direction.

The judicial system needs big steps in the right direction. The system needs a modern way of legal explanation of decisions in court judgments. The system needs a new way of deciding by judges and lay judges. A new way of writing and structuring the judgments in line with the practice of international courts. Abandoning the backlog of relics from one past time, such as deciding on behalf of the citizens. The judges make their own decisions, and therefore they bear the responsibility personally.

Furthermore, changes in the position of the courts throughout the state are necessary. One needs to seriously consider the need for four appellate courts in such a small area, which, in truth, not only have a huge discrepancy in the scope of work and the weight of the objects (and they are paid equally), but sometimes also have huge discrepancy in the interpretation of the right to the same factual circumstances. Could the solution be in a Court of Appeal on the territory of Macedonia with four units? Why not legally be allowed a commercial dispute between Stip and Kocani firm to finish secondarily before the department in Bitola. Or a dispute between two Skopje companies before the department in Stip. In this way, not only will the practice be equalized, the workload of judges will equalize, and of course it will be in the direction of reducing corruption.

The real jurisdiction of the Supreme Court will have to be redefined. At present, the Supreme Court, as the highest court and court that is supposed to create case law, is buried with objects of relatively low value (due to the low threshold in the Law on Civil Proceedings), but also because of some “strange” legal solutions that, regardless of the value of the dispute, guarantee access to the highest court. So, for several thousand euros and even hundreds of euros each, the state will have to launch a whole machine of 13 judges and jury judges in three instances to finally resolve the dispute. Finally, the possibility for the Law on Courts to be clearly missed is to clearly define the direct application of international agreements and the obligations arising from them in everyday disputes. Above all, this refers to the direct application of the European Convention on Human Rights, as well as the practice of the Court in Strasbourg.

Obviously we will need to wait for real “life” in the judiciary. More and more it seems that the judiciary will be left to “barely living”. Financial, staffing, expert … It will be left dependent de jure and de facto from the executive branch. Unfortunately, neither the large number of negative reports from relevant governmental and non-governmental organizations that criticized such a situation was a sufficient reason for the projection and start of real reforms in the judicial area. Reforms that will modernize the judiciary and promote justice, reforms that will guarantee justice, but at the same time reforms that will guarantee the independence and impartiality of judges. Because, “Presidents and governments come and go, but the Supreme Court goes on forever.” (William Howard Taft).

(The author is a lawyer and a member of VMRO-DPMNE)