The principle of independence of the judiciary continues to feature prominently in the ongoing EU accession process. This is as it should be. The independence of the judiciary, a fundamental principle on which a functioning democratic society is based, remains a central part of the reform agenda which each acceding country is required to adopt.
Since 2011, the European Union has placed the rule of law at the heart of the accession process, in order to, using its own words “address fundamental reforms early in the enlargement process”. In so doing, it recognized that everything else in a democratic society depends on the rule of law: a functioning economy, a free and fair political system, important role of civil society and its involvement in government policy development, and finally public confidence in the police and judicial system.
This is particularly relevant in the current EU enlargement agenda having in mind the particular characteristics of the Balkan region with high levels of corruption, coupled with weak institutions, political interference in the judicial process and highly politicized public administrations. It is only by tackling these fundamental weaknesses at source that successful reforms can emerge and bring lasting benefits for the countries concerned. Even if this approach makes the accession process more challenging for the candidate countries in that it raises the threshold at the initial phase of the negotiations, if consistently applied, it will nevertheless bring dividends in the long term.
Government interference in the work of the judiciary
Unfortunately the performance record of Macedonia in its reform agenda is one of the worst in the region. All the reports published by the international community, whether by individual governments such as the US, or those drawn up by international entities such as the EU, the OSCE and the Council of Europe, are unanimous in their assessments of the poor record of Macedonia in fulfilling its reform commitments.
The most recent Progress Report from the European Commission speaks of “actual and potential political interference in the work of the judiciary“(*). It builds on the findings of the Special Report of the Senior Experts’ Group on systemic rule of Law issues relating to the communications interception revealed in Spring 2015, the so-called Priebe report, which was drawn up by highly respected and qualified legal experts from across the EU. This report refers, inter alia, to “Indications of unacceptable political interference in the nomination and appointment of judges was well as interference with other supposedly independent institutions for other personal or political party advantages.” (**)
While the wiretapped conversations reveal shocking examples of abuse of power by the ruling party, violations of the fundamental rights as well as direct involvement of senior government and party officials in illegal activities including electoral fraud, corruption, etc., the backsliding in Macedonia’s reform record goes back several years. Successive reports from the European Commission, as well as specific reports drawn up by civil society organizations within Macedonia, have pointed to weaknesses in several areas, with little effort by the government to address these weaknesses.
For example in the area of judicial reform, the above mentioned EC’s Progress Report states that “little progress was made as regards the independence and impartiality of the judiciary”. In the 2012 Progress Report, the European Commission repeated the same assessment. (***). Even in the Progress Report of 2009 when the European Commission recommended that a date be set for the opening of negotiations, reference is made to “documented irregularities regarding recent judicial proceedings have raised questions about the independence and impartiality of parts of the judiciary.” (****)These references clearly show that the situation has deteriorated dramatically over the years, despite the government’s assertions that it fully respects the independence of the judiciary.
The number of cases instigated by the ruling party against its political opponents which have been the subject of court judgements without due process has reinforced the international community’s assessment of repeated selectivity on the part of the state institutions. As highlighted in several US State Department Reports, the Public Prosecutor has systematically engaged in selective prosecutions; examples include charges brought against architecture students in 2010, but systematically refusing to bring changes against those who repeatedly perpetrated violent acts against the LGBT community, or refusing to bring charges against those involved in violent acts in Centar Municipality perpetrated against the Mayor and his office, even though in each of these cases, all those responsible were clearly identifiable.
The government’s emphasis on quantitative rather than qualitative assessment criteria, whereby judges are assessed by the number of cases processed, has also been the subject of considerable and repeated criticism. Indeed the government’s obsession with quantity rather than quality, not just in the judiciary, but also in public administration, gives the impression that its approach on the functioning of government and state institutions is based purely on an accounting exercise to substantiate the ruling party’s slogan that it is a government working “24/7’’. Little effort is devoted to the actual substance of its actions or ensuring effective follow up for legislation adopted. Bodies established under different legislative measures, such as the Commission for Prevention and Protection from Discrimination, or the Agency for the Protection of Minorities, all suffer from lack of funding and qualified staff. Again, these examples are amply documented in the reports relating to Macedonia’s reform record.
The Judicial Council meanwhile, a body supposed to give confidence to the public in the impartiality of the judicial system, includes members with no judicial experience. As emphasized in the European Commission’s 2015 Progress Report, “this undermines the professional balance and high level of competence foreseen by the legislation.”(*****)
This is unfortunate given all the efforts made by the international community to support the country in putting in place an exemplary judicial system which would have the confidence of the citizens. This support goes as far back as 2004 with the adoption by the then government of the judicial reform strategy, which was identified as a critical priority of the Accession Partnership with the EU. Indeed over the years the EU devoted a considerable amount of funds towards this area.
Academy of Judges and Public Prosecutors.
One example is the financial assistance for the establishment in 2007 of the Academy of Judges and Public Prosecutors which would enable the courts and prosecution system to be manned by competent highly qualified judges and public prosecutors. Yet it took several years and constant reminders before the government undertook to set in place a process of incorporating the graduates from the EU funded Academy of Judges and Public Prosecutors into the judicial system, even despite this commitment the Judicial Council continued to give preference to government supported candidates over applicants from the Academy. The revelations from the wiretapped conversations confirm the direct interference of the government at the highest level in judicial appointments.
Protecting the Special Prosecutor.
The Special Prosecutor, Katica Janeva, who was appointed in September 2015 to investigate the revelations from the wiretapped conversations, continues to face repeated obstacles in performing her work, not least obstruction from the State Public Prosecutor, verbal attacks from the ruling party, and attempts by the President of the Republic to pardon several of the senior government and party officials, including the former Prime Minister himself. The criticism levelled against her by the ruling party that her office is adopting a “selective approach” in the investigations opened, rings hollow when one recalls the government’s own record in selective justice illustrated above.
That she has pursued her investigative work regardless is a tribute to her courage and perseverance. The performance and dedicated professionalism set by the Special Prosecutor’s Office has won admiration and praise from both the people of Macedonia calling for a return to the rule of law in the country, as well as from the international community.
However, with a judicial system heavily weighted in favor of the ruling party, her efforts will lead nowhere unless a mechanism is set in place to guarantee that the cases she brings forward to the courts will be treated with the highest standards of due process. The only way to achieve this will be the establishment of a special chamber in the Criminal Court, which would be tasked with adjudicating all the cases presented by the Special Prosecutor. There will need to be careful supervision of the selection process of the judges who would sit on this chamber to ensure that only those whose independence are above suspicion are appointed.
The survival of Macedonia as a functioning democracy is seriously in question after years of increased authoritarian rule and the all-pervasive control by the governing coalition, led by the ruling party VMRO-DPMNE, over all the levers of power and state institutions. The damage done to the credibility of the state institutions not to mention to the image of the country as a result of the government’s behavior will take years to undo. A government which survives solely on the basis of giving favors in return for allegiance to the ruling parties is living on borrowed time and perpetuating a corrupt system of governing, where the sacrosanct principle of equality before the law is sacrificed on the altar of power politics.
The slogan “No Peace Without Justice”, adopted by the thousands of citizens who have been demonstrating for several weeks across Macedonia and beyond, encapsulates the challenge facing the country: until such time as the rule of law returns to Macedonia, there will be no peace in the country.
Brussels June, 2016.
(*)EU Enlargement Strategy 2015-16, page 22.
(**) Recommendations of the Senior Experts’ Group on systemic Rule of Law issues relating to the communications interception revealed in Spring 2015, Brussels,8 June, 2015.
(***) EC Progress Report 2012, page 49.
(****) EC Progress Report 2009, page 57.
(*****) op.cit., page 51