Macedonia May Rue Hastiness

Macedonia has taken another step along the road to Euro-Atlantic integration by attempting to reform its notoriously inefficient and corrupt judiciary.

Parliamentary deputies on May 18 unanimously voted for the government to prepare constitutional changes as the first step in the judicial reform process.

Before the vote, Justice Minister Meri Mladenovska addressed parliament saying that the changes will contribute to development of European standards in the judiciary.

“ An independent judiciary is in the national interest,” said Mladenovska, noting that constitutional changes are top priority for the government in 2005.

She called all political parties in parliament to support the judicial reform process, seen as crucial for Macedonia`s ambitions to join the European Union.

However, analysts fear that, in its attempt to impress Brussels, Skopje is rushing into the process without any real clear idea of how to proceed with the reforms.

The former Yugoslav republic’s judiciary is recognised as inefficient, corrupt and subject to strong political influence.

In 2004 alone, more than a million legal cases were going through the Macedonian courts – an enormous number given that the country is home to little more than two million people – and half of these lawsuits have yet to be resolved.

A number of high-profile cases against former government ministers, company directors and civil servants accused of financial crimes involving hundreds of millions of euro have been dragging on for years. Others only went on trial after the US State Department published a list of cases they wanted to see resolved.

In December 2004, following strong criticism from the EU, Skopje adopted a national strategy for judicial reform which outlined a number of key changes in the country’s legislation and constitution to increase efficiency and free the courts from political influence.

The Macedonian parliament has since been presented with a set of draft proposals for amending the county’s constitution to allow for judicial reform, which has been pinpointed by the EU and NATO as being a crucial pre-condition for eventual membership.

Mladenovska had repeatedly told the media that several key problems had been identified and were being addressed by the draft proposals.

"The main weaknesses relate to the long length of court proceedings, the fact the judges are dealing with far too many cases, abuse of procedures, no transparency and insufficient education," she said.

"Our top priorities are to secure full independence of the judiciary, strengthen the institutions and increase efficiency."

Radmila Sekerinska, vice premier in charge of EU integration, has warned that Macedonia will have to show that the proposals and reforms have had tangible results in order to get a positive reaction from Brussels by the end of the year.

"The year of 2005 will be dedicated to reforming the judiciary. This is an area that the country must address in order to ensure candidate status for both the EU and NATO," she told parliament on April 19.

"If we don’t show that we have been doing our homework in this [period], Brussels will not trust us."

Some EU diplomats have expressed caution about the progress to date.

"The Macedonian prime minister has repeatedly mentioned this area as one of his top priorities,” said one, speaking on condition of anonymity.

“However, the real level of political will [in Skopje] will only be known when the reform process actually begins, and meets with difficulties and opposition."

And others worry that the reforms have not been properly thought out in Skopje’s rush to show Brussels that it means business.

The authorities’ decision to start the process with a number of constitutional changes has worried experts who see this as an indication of a poor strategy.

One legislator, who asked not to be named, described this as "like building a house starting with the roof”.

“First they should have had a clear picture and design of the reform process and than change the constitution in the end, when they have a better idea of what is needed," he said.

Gordan Kalajdziev, a law professor at Skopje University, told Balkan Crisis Report, BCR, that he was concerned that the government is more interested in making cosmetic changes, rather than the wide-ranging fundamental reforms that are needed.

"This is an attempt to show that something has been done in a very short period of time, to give an impression that we are introducing bold liberal changes – [but it is being done] without any consideration whether the given solutions are really the best ones for Macedonia,” Kalajdziev told BCR.

“It is questionable how practical these changes are for us and whether we have the capacity to carry them out.”

Former justice minister Vlado Popovski, who is now a professor at Skopje University, told BCR that he doubted the extent of the strategy behind the changes, and accused the authorities of "trying to improvise without much contemplation”.

"The drafting of a reform strategy should have required the involvement of Macedonia’s entire judicial community, and this was not the case,” said Popovski.

The strategy and the proposals that followed it pinpoint the current high level of political interference as a crucial problem that must be solved through reform.

At the moment, the authorities play a key role in the election of members to the highest legal body in Macedonia – the Republic Judiciary Council, RJC, which consists of seven individuals appointed by a parliamentary commission.

The council’s members nominate all judges, subject to approval by parliament. But as RJC members are selected by a simple majority of votes in parliament, the authorities effectively have control over the appointment of both.

Savo Klimovski, who headed the initial team in charge of preparing the constitutional changes, told BCR that the RJC has strayed from its initial purpose, as a protector of the judiciary, and has become a tool of executive power.

"If any body requires complete reform in regard to its status, position and organisation, it would be the RJC," he said.

Klimovski’s team has proposed that, post-reform, Macedonia’s judges and prosecutors are elected by a new independent body called the State Council of Justice. This new council would mostly consist of judges, who would participate on two independent bodies, the State Judicial Council and the Public Prosecution Council.

Such constitutional changes are necessary, they say, because the current provisions do not provide enough guarantees for independence when judges and prosecutors are elected.

But Supreme Court judge Agim Miftari, who is president of Macedonia’s Association of Judges, told BCR that the existing criteria for the election of judges and members of the RJC was supposed to guarantee independence, efficiency and competency.

"However, this has not been respected. Where is the guarantee that things will change now?" he asked.

Others doubt that purely constitutional changes will solve problems within the RJC and the judiciary as a whole.

"Changing the constitution is easy - the difficulty lies in the fact that there has been no real discussion on the specific measures that will resolve the problems," Skopje University’s Kalajdziev noted. "Many good solutions become bad ones if there is a lack of political will."

And law professor Ljubomir Frckoski argued that political attitudes must change first if constitutional reforms are to succeed. "The Macedonian RJC is similar to bodies in most European countries,” he noted. “ [But] we have to ask ourselves why there is no corruption and political influence in their courts.”

In any case, many believe that the government will be reluctant to ease its grip on the judiciary.

An illustration of this is that legislation on the courts and the mandate of judges resulted in a conflict between the government and an expert team it had hired to prepare constitutional changes.

The expert team said legislation concerning the courts could only be changed by a two-thirds majority as is currently the case, while the government insisted on changing it to a simple majority.

The former also proposed that judges continue to be granted life mandates while the latter wanted to give them temporary ones – for a period of between six months to two years after which their status would become permanent.

The experts were fired in early May.

Tanja Karakamiseva, a former member of the team of experts, told BCR, “A temporary mandate will make judges more [politically] dependent than now and with simple majority necessary for adoption of the law for courts any government can easily changes the law according to their needs.” she said.

Macedonian president Branko Crvenkovski also got involved in the row and took the side of the experts saying that the government proposal for legal reform would jeopardise the independence of the judiciary.

“The proposal to change the majority to pass these laws is [inconsistent with] the planned reforms,“ said Crvenkovski in a written statement to parliament on May 17, a day before it gave the go head for the government to prepare constitutional changes for judicial reform.

Victor Ullom, head of rule of law department at the Organisation for Security and Cooperation in Europe, OSCE, told BCR that Macedonia was not alone in lacking the political will necessary for a truly independent judiciary.

"Like in many transitional states, there is reluctance and misunderstanding from several groups - including politicians and even judicial professionals themselves - about the ramifications of a fully independent judiciary," Ullom told BCR.

"So while there is a will to make the judiciary independent, there is also caution as to how this can be accomplished. For its [successful] implementation, there should be a broad national discussion about how far elements of the constitution can and will be changed.”

Macedonia is now facing a self-imposed race against time, having announced that the constitutional changes would be in place by the end of the year. Observers worry that if this goal is not achieved, Skopje will have sent a clear signal that it is not capable of meeting one of the most basic requirements for Euro-Atlantic integration.

The EU diplomat in Brussels said, "As this is one of the key reform areas for EU integration, a significant delay would obviously have a negative impact on Macedonia’s progress towards joining the EU."

Dr Renata Deskoska, a constitutional law expert now working as a counsellor in the presidential administration, said that the tight schedule was critical if the constitutional amendments are to be implemented by the end of 2005, and to avoid any complications caused by the following year’s parliamentary elections.

“If the procedure is prolonged and goes into 2006, the question will be whether [the proposals] will be adopted at all - because they will require the backing of two-thirds of the parliamentary deputies,” she said.

“What is needed is an efficient and politically independent judiciary. Given the current system and practice, it will obviously take some time before this objective is fully met. However, it is essential to work towards this goal as quickly as possible, and the EU supports an ambitious time table,” said another EU diplomat.

In the meantime, the misery continues for those Macedonians who try to resolve their disputes through the republic’s courts.

One litigant, who gave his name as Shemsi, told BCR that he has been trying to prove his ownership of a Skopje shop for three decades, and is currently fighting the case in the Supreme Court.

"I cannot understand why I cannot get my shop back when I have a court decision dating from 1974 saying that it belonged to my parents, and that I am their heir,” he said.

Tamara Causidis is BIRN assistant editor in Skopje, Sase Dimovski is a journalist with Channel 5 TV, Svetlana Jovanovska is Brussels correspondent for daily Dnevnik and BIRN contributor. BIRN is a localised IWPR project.