To State Capture in North Macedonia

BLIND JUSTICE: TO STATE CAPTURE IN NORTH MACEDONIA

JUDICIARY, PUBLIC BLIND JUSTICE:TO STATE CAPTURE IN NORTH MACEDONIA - JUDICIARY, PUBLIC PROSECUTION AND POLICE PROSECUTION PUBLIC - JUDICIARY, MACEDONIA IN NORTH CAPTURE STATE JUSTICE:TO BLIND PROSECUTION AND POLICE

BLIND JUSTICE: TO STATE CAPTURE IN NORTH MACEDONIA

JUDICIARY, PUBLIC PROSECUTION AND POLICE Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police

Publisher: Foundation Open Society – Macedonia For the publisher Fani Karanfilova - Panovska, executive director Editor-in-Chief : Rosamund Taylor Editors: Danche Danilovska – Bajdevska, Foundation Open Society – Macedonia Arta Jusufi, Foundation Open Society – Macedonia Ana Petrusheva, BIRN Macedonia – Balkan Investigative Reporting Network Tamara Chausidis, BIRN Macedonia – Balkan Investigative Reporting Network Srdjan Cvijic, Open Society European Policy Institute Implemented by: BIRN Macedonia – Balkan Investigative Reporting Network Foundation Open Society – Macedonia Helsinki Committee of Human Rights Institute for Human Rights Coalition “All for Fair Trials” Authors: Goce Trpkovski Vasko Magleshov Aleksandar Dimitrievski Gordan Kalajdzjiev Denis Preshova Margarita Caca Nikolovska Vera Koco Darko Avramovski Proofreading: Abakus Design and print: KOMA Circulation: 200 Free non-commercial circulation Skopje, May 2020

CIP - Каталогизација во публикација Национална и универзитетска библиотека "Св. Климент Охридски", Скопје

347.97/.99:32(497.7)"2006/2016" 351.74:32(497.7)"2006/2016" 355.40:32(497.7)"2006/2016"

ЗАСЛЕПЕНА правда : до заробена држава во Северна Македонија - судство, јавно обвинителство и полиција / [автори Гоце Трпковски ... [и др.]. - Скопје : Фондација Отворено општество - Македонија, 2020. - 154 стр. : фотографии ; 30 см

Фусноти кон текстот. - Други автори: Васко Маглешов, Александар Димитриевски, Гордан Калајџиев, Денис Прешова, Маргарита Цаца Николовска, Вера Коцо, Натали Петровска, Дарко Аврамовски

ISBN 978-608-218-287-2

1. Трпковски, Гоце [автор] 2. Маглешов, Васко [автор] 3. Димитриевски, Александар [автор] 4. Калајџиев, Гордан [автор] 5. Прешова, Денис [автор] 6. Николовска, Маргарита Цаца [автор] 7. Коцо, Вера [автор] 8. Петровска, Натали [автор] 9. Аврамовски, Дарко [автор] а) Правосуден систем - Политички влијанија - Македонија - 2006-2016 б) Безбедносен сектор - Политички влијанија - Македонија - 2006-2016

COBISS.MK-ID 51461381 CONTENTS

EXECUTIVE SUMMARY ...... 6 The structure and organization of the Policy recommendations to the European Republic of North Macedonia’s judicial Commission and the system ...... 58 Government of North Judicial Independence Under Siege ...... 62 Macedoniaа...... 10 The Judiciary In North Macedonia: the INTRODUCTION...... 13 Process for Selection, Performance Methodology...... 14 Evaluation, Career Advancement and CS1: The State Attack on Open Society... 15 Dismissal of Judges ...... 71 CS2: Macedonian prosecutors can Dysfunctionality and Political Interference do as they please...... 24 in the Public Prosecution, the Police and СS3: State Capture in the Story of Secret Services...... 85 Captured Court Software...... 30 Abuse of the Automated Court СS4: Is public office the best protection Case Management Information System against jail?...... 36 (ACCMIS) ...... 99 СS5: Justice helpless in the face of The (ab)use of detention ...... 106 unlawful pardons...... 43 СS6: Detention as Punishment for Common People...... 52

Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police | 5

ACRONYMS LIA LAW FOR INTERNAL AFFAIRS LP LAW FOR POLICE ACCMIS AUTOMATED COURT CASE MANAGEMENT LPP LAW ON PUBLIC PROSECUTION SYSTEM LSPPO LAW ON THE SPECIAL PUBLIC PROSE- AJPP ACADEMY FOR JUDGES AND PUBLIC PROSE- CUTOR’S OFFICE - LAW ON THE PUBLIC CUTORS PROSECUTOR’S OFFICE FOR PROSECUTION ANS AGENCY FOR NATIONAL SECURITY OF CRIMINAL OFFENSES RELATED TO AND BPPO POCC BASIC PUBLIC PROSECUTOR’S OFFICE FOR ARISING FROM THE CONTENT OF ILLEGAL PROSECUTION OF ORGANIZED CRIME AND INTERCEPTION OF COMMUNICATIONS CORRUPTION MI MINISTRY OF INTERIOR CC RIMINAL CODE OF REPUBLIC OF NORTH OSCE ORGANISATION FOR SECURITY AND CO-OP- MACEDONIA ERATION IN EUROPE МD MINISTRY OF DEFENCE PP PUBLIC PROSECUTION CPC CRIMINAL PROCEDURE CODE RNM REPUBLIC OF NORTH MACEDONIA DUI DEMOCRATIC UNION FOR INTEGRATION SCD SECURITY AND COUNTERINTELLIGENCE DI- EC EUROPEAN COMMISSION RECTORATE ECHR EUROPEAN COURT FOR HUMAN RIGHTS SCPC STATE COMMISSION FOR PREVENTION OF ECHR EUROPEAN CONVENTION ON HUMAN RIGHTS CORRUPTIONSDSM SOCIAL DEMOCRATIC UNION OF MACEDONIA EU EUROPEAN UNION SEC STATE ELECTION COMMISSION FP FINANCIAL POLICE SPO SPECIAL PUBLIC PROSECUTION HPPO HIGHER PUBLIC PROSECUTOR’S OFFICE UN UNITED NATIONS IA INTELLIGENCE AGENCY VMRO-DMPNE INTERNAL MACEDONIAN REVOLUTIONARY ICH INSTITUTE FOR HUMAN RIGHTS ORGANIZATION – DEMOCRATIC PARTY FOR LEC LAW ON ELECTRONIC COMMUNICATIONS MACEDONIAN NATIONAL UNITY LFP LAW ON FINANCIAL POLICE EXECUTIVE SUMMARY

Democracy in North Macedonia was under As illustrated in the 2017 Priebe Report, serious threat for almost a decade. In the pe- the capture of the judiciary happened when a riod 2006 -2016, the judiciary, public prosecu- small number of judges in powerful positions tion, police and media were under the control abused the judicial system to gain power and of the former government of the Internal Mac- promote both their personal interests and edonian Revolutionary Organization – the Dem- those of governing elites. Moreover, unclear ocratic Party for Macedonian National Unity and unsupported decisions on the selection (VMRO-DPMNE) and its leader, Nikola Gruevski. and dismissal of many public prosecutors and Critical academics, journalists and civil socie- judges confirm what the wiretaps suggested ty activists, as well as opposition politicians, about political interference in these process- were silenced and many of them were perse- es. Statistics also demonstrate a lack of will- cuted. During this decade, a small group of rul- ingness on the part of the public prosecution ing party politicians and government officials to investigate high-level corruption cases. controlled all state institutions. Then came Furthermore, judges and public prosecutors the 2015 scandal over the illegal wiretapping abused detention measures and violated the of more than 20,000 people, masterminded by presumption of innocence by detaining sus- former Prime Minister Nikola Gruevski and his pects when the targets of these prosecu- counterintelligence chief. After the contents tions held political power. This was not the of wiretapped conversations were publicly case when politicians and government mem- disclosed, in its 2016 progress report the Eu- bers faced criminal charges. In these cases, ropean Commission described the country as politicians seem to enjoy immunity, as many subject to ”state and institutional capture”, of those accused of criminal offenses were reaffirming the findings of the Priebe-led sen- pardoned under discretionary authority held ior experts’ group published in June 2015. by the President of State, or were not sen- Today, despite the fact that VMRO-DPMNE tenced. Following a political crisis triggered is no longer in power and its leader and for- by the wiretapping scandal, the Special Pros- mer Prime Minister Gruevski is in exile in Vik- ecution Office was established in 2015 by mu- tor Orbán’s Hungary, traits of state capture tual agreement among the four major political still remain in the judiciary, public prosecution parties, brokered under EU mediation. Unfortu- and police. We must uncover the extent of the nately, this institution also failed, with charg- “state capture” in order to be able to under- es raised against the chief special prosecutor stand existing institutional weaknesses, but on the grounds of “abuse of public office and also to develop strategies for early detection, duty” in yet another corruption scandal. prevention and proper sanctioning of such The research presented in this publication abuses. Through examples and real-life cases, was commissioned by the Open Society Eu- this publication highlights specific manifesta- ropean Policy Institute and conducted by the tions of the state “capture” and their conse- Balkan Investigative Reporting Network Mace- quences. donia, in a joint effort with the All for Fair Trials Coalition, Institute for Human Rights, Macedo- Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police | 7

nian Helsinki Committee for Human Rights and sion of responsibility among those involved, the Foundation Open Society - Macedonia. the report confirmed that the highest judicial In particular, the research identifies several authorities in the country had intentionally ways in which political interference interfered manipulated the system over a period of about in the justice system when it was subject to five years (2013 - 2017). state capture, and how existing system- Culture of absolute impunity of politicians ic weaknesses pertaining to the rule of law amid a surge of political corruption – Senor Of- were exploited in the ruling party’s interests. ficials are almost untouchable by the law when Patterns or mechanisms, described in five they are in power. Statistics reveal that, almost expert analyses and six investigative stories, without exception, they face criminal charges demonstrate how the party in power carried only when their political party is no longer in out “state capture” and how the judiciary’s power. In addition to the abuse of power and systemic weaknesses enabled it, through: authority, officials are charged with criminal Clientelistic relations between the judi- association, damaging or privileging credi- ciary and political elites - Wiretaps leaked in tors, large-scale fraud and money laundering. 2015 contain strong indications of apparently Sanctions were rarely enforced, which tends unlawful behaviour on the part of judicial offi- to make corruption a low-cost and high-ben- cials, such as: improper and unlawful selection efit activity for politicians. The investigative and promotion of judges loyal to the previous stories show how senior officials went unpun- governments; dismissal of independent judg- ished in a large number of court cases. es; and interference in the selection of mem- Misuse of amnesty - Most amnesty de- bers of the Judicial Council. Abuse of ACCMIS cisions have problematic legal standing, as through the manual allocation of court cases many have argued that they did not comply and misuse of pre-trial detention are only two with the Law on Amnesty, and violated the of the many ways in which political control was Constitution and international treaties and exercised over the judiciary. These networks of norms. Case studies show that amnesty deci- judicial elites close to political parties in pow- sions were taken on the basis of party inter- er risked the judiciary’s independence and in- ests, rather than as part of a broader reconcil- tegrity, and created a safe zone where a small iation process. group of judges could gain power and promote Lack of accountability of public prosecu- political interests aligned with those of the po- tors – The former chief special prosecutor has litical elites. now been charged with abuse of office for al- Manipulation of the Automated Court Case legedly receiving payments from a well-known Management Information System – In 2017, the businessman in return for a lenient sentence Ministry of Justice conducted an independent in his corruption trial. Events such as this investigation into the use of the Automated go a long way to explaining public distrust Court Case Management Information System in prosecutors who work on organized crime (ACCMIS). Despite clear procedures and divi- and corruption, and the widespread percep- 8 | Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police

tion that their office lacks integrity and is not percentage of all motions filed is significantly immune to interference from politicians and higher in the case of POOCC compared to SPO business elites. Public prosecutors are rare- (95% and 25%, respectively). ly held accountable for misconduct, even if it Abuse of institutions to prosecute CSOs has been proven that their actions contributed – The importance of free media and an to wrongful convictions. Experts discuss the independent civil society is crucial in the fight public prosecution’s passive role in conduct- against state capture and corruption. During ing independent investigations and initiating VMRO’s regime, the State Commission for criminal proceedings, which means the police Prevention of Corruption, Financial Police, Public enjoy significant autonomy to decide which Revenue Office and the Public Prosecution criminal cases should be referred to the pub- Office were all instructed, by blatant abuse lic prosecution, and which evidence should be of their respective authorities, to initiate revealed. baseless investigations and inspections of Political pressure on the police in the 22 non-governmental organizations that had initial stages of criminal proceedings – While criticized the government. problems in the judiciary are in the spotlight, Lack of clear long-term reforms in the ju- institutional weaknesses in the public diciary, public prosecution, the police and se- prosecution and the police remain under the cret services – Currently, reforms are largely radar. In particular, the public prosecution’s focused on aligning national legislation with lack of investigative competences gives more international and comparative legal standards power to the police to decide whether charges without having conducted a thorough research would be raised, whether cases should be of the actual causes of the justice system’s referred to the public prosecution, and what dysfunction. In the past, legal amendments evidence should be presented to the public and reforms were frequently adopted, but have prosecution in case files. As a result, the police not made a significant difference in overcom- are highly politicized due to their important role ing real challenges and institutional weak- in the initial stages of criminal proceedings. nesses in the justice system. Misuse of detention measures – Excessive This report illustrates these systemic use of detention measures, long pre-trial weaknesses through six case studies: detention, a lack of adequate rationale in CS1. “The State Attack on Open Society” Detention Motions and a lack of adequate reveals a well-designed, politically-motivated evidence all indicate the abuse of this and coordinated operation to exploit institu- custodial measure. Detention has been used tions to force a final confrontation with the as a means of coercion or covert punishment, civil society sector and individuals critical of which inevitably violates the presumption the government, which the previous govern- of innocence, and consequently the right ment called “de-Sorosization”. The journalistic to a fair trial. The ECtHR has established investigation showed that this operation had violation of Article 5 from ECHR in cases such involved severalmonths of intensive audits at as Vasilkoski and others v. Macedonia and 22 non-governmental organizations, which Ramkovski v. Macedonia, because decisions failed to find anything illegal and did not hold on imposing and extending detention did not accountable those who commissioned and im- provide the necessary arguments to justify the plemented them. detention motions. Differences between the CS2. In the “No prosecutor for Macedonian court’s handling of motions submitted by the Prosecutors” chapter, BIRN investigates the two prosecution offices (Special Prosecution responsibility of public prosecutors. In par- Office and the Prosecution Office against ticular, the chapter illustrates their suscepti- Organized Crime and Corruption) provide bility to political corruption, direct and indirect additional evidence for the possible abuse of influences, and lack of effective mechanisms detention measures. Approved detentions as a to hold them accountable. The investigation Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police | 9

showed that in the period of 12 years a total of 12 prosecutors have been dismissed, of whom eight were dismissed in 2008, when Niko- la Gruevski’s government effectively seized control of the judiciary. It compares the relationship between the prosecution and politicians to the so-called “Stockholm syndrome”, whereby they are captured, but have developed an emotional relationship with their ag- gressor, and help to attain his goals. CS3. BIRN’s investigation “State Capture in the Story of Captured Court Software” shows that the abuse of the software for automatically assigning court cases to judges was invisible to the Judicial Council and the Supreme Court - even though it was a public secret, and judges officially complained that they had been verbally ordered to take on particular cases. This went on until the abuse was noted in Priebe’s 2015 report of the senior expert’s group on the rule of law. CS4. “Public Office as Best Protection against Incarceration” investigates whether it is true that politicians are never or rarely held responsible for crimes they have committed while in public office. It concludes that of 89 public officials charged with criminal offenses, only 17 have been appeared in court as defendants. Among them, eight were acquitted; court processes are underway for four officials; one was convicted in the first instance, pending a decision from the higher instance court; and five were sentenced to imprisonment. However, only two of them have so far served their sentence. CS5. “Justice helpless in face of unlawful pardons” is focused on pardoning decisions during the last ten years, and the effect on wider society of extending pardons to political personalities. CS6. The last investigation focuses on the use of custodial measures for suspects, titled “Detention as Punishment for Common Peo- ple”. A comparative analysis of the “Mavrovo Workers” and “Snake’s Eye” cases investigates how institutions act differently when the subject of a prosecution is a politically important player. These people could have their detention order revoked even after having fled the country. 10 | Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police

monitoring of its alignment with the EU ac- POLICY RECOM- quis and allowed independent professional assessment that properly identified the MENDATIONS TO elements of state capture; ÂÂThe European Commission should con- THE EUROPEAN tinue to provide assistance to North Mac- edonia to accelerate reforms in the areas COMMISSION of judicial independence, anti-corruption, the fight against organized crime, and AND THE alignment with core European values; ÂÂThe European Commission should insist GOVERNMENT OF that local authorities make more effort to tackle high-level corruption and to imple- NORTH ment research-based reform strategies. Without in-depth knowledge about which MACEDONIAА procedures and practices fail to prevent Recommendations for the state capture at institutional level and fail European Commission and EU to fight corruption, anti-corruption poli- member member states cies will remain ineffective; ÂÂThe European Commission should include national experts, think-tanks and civil society in evidence-based policy ÂÂNewly adopted changes to the acces- making and oversight on performance of sion negotiations methodology are wel- the judiciary, public prosecution and the come, as they give more powers to the EU police, to ensure proper and consistent to act when a candidate country shows implementation of legal and policy solu- significant backsliding under the rule tions; of law in the course of accession talks. ÂÂThe European Commission and the EU The European Union should continue to member states represented in the Coun- demonstrate political will to contribute to cil should put more emphasis on an out- making the upcoming negotiations pro- come-orientated approach, instead of cess with North Macedonia more predict- focusing too much on formal rules and able, dynamic and credible; institutional structure. This approach ÂÂSimilarly, the European Union should should involve changes to legal culture revise its rules and monitoring procedures, and institutional practices; in order to address backsliding under the ÂÂThe European Commission should rule of law in candidate countries that enhance its efforts to promote reform in have not begun accession negotiations, legal education, not only of the Academy aimed at preventing similar political crises for judges and prosecutors, but also at a like the one in North Macedonia and state faculty level. capture at an institutional level; ÂÂThe European Commission should con- Structural recommendations sider conducting more expert-led assess- for the Government include the ments. The so-called Priebe Report, devel- following: oped by a group of independent experts assessing the rule of law, proved to be an ÂÂThe government should conduct effective monitoring mechanism for North a comprehensive assessment of the Macedonia that went beyond technical root causes of “state capture”, and Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police | 11

consequently address weaknesses in the judges who have been improperly and judiciary, public prosecution and the police unlawfully dismissed from office - and with sustainable and evidence-based these judges should be allowed to return solutions. These assessments would to judicial office; allow evidence-based policy making and ÂÂAuthorized bodies should conduct would better prepare the country for the EU mаndatory and timely audits of the use of accession negotiations process; the Automated Court Case Management ÂÂSpecifically, in a joint effort with Information System; self-governing bodies (Judicial Council ÂÂThe courts must offer detailed and ex- and Council of Public Prosecutors), the haustive rationales in their detention de- courts, professional communities (judges, cisions, which adequately explain the circumstances and personal characteristics prosecutors, lawyers), academia and civil of each defendant society, the government should address ÂÂThe academic community and civil problems related to judicial capture, and society should be involved in oversight promote institutional capacity-building of the Judicial Council and the courts, in to achieve sustainable results instead of order to ensure adequate implementation fast, superficial solutions; of the legal framework which is, to great ÂÂThe government should strengthen the extent, aligned with European standards. ability of the judiciary, public prosecution and the police to be proactive in the fight Structural Recommendations against corruption, and should establish regarding the Public Prosecution legal responsibility for public office hold- ÂÂThe Public Prosecution should be ers, tackling their impunity; proactive in the fight against corruption, by ÂÂRecommendations put forward in all five initiating criminal procedures themselves analyses from this publication should be when there are grounds for suspicion that taken into consideration when designing a criminal offense has gone unreported by policies to improve systemic weaknesses the relevant authorities, as well as through in the judiciary, public prosecution, and the careful revision of charges reported by police, and to overcome the challenges of citizens, members of the legal profession state capture. and institutions to the police; ÂÂA comprehensive analysis of the Structural Recommendations lessons learnt from the malfunctioning regarding the Judiciary of the SPO should be conducted so as to ÂÂPolitical influence over the process better organize of the Prosecutor’s Office of appointing, evaluation, promotion and for Organized Crime and Corruption, as dismissal of judges and public prosecutors, a lasting instrument in the fight against as well as members of the Judicial Council corruption of the political elite; and the Council of the Public Prosecutor, ÂÂDe-professionalization of the Council should be removed; of Public Prosecutors would prevent its members to be alienated from their ÂÂThe Parliament of RNM should select professions and would not allow this body respected members of the legal profession, to fall prey to bureaucracy of uncontested authority, as the so-called ÂÂMeasures need to be taken to enhance non-judge members in the Judicial Council; the public prosecutor’s functional ÂÂThere should be full and timely superiority over the police departments implementation of the procedures on involved in criminal proceedings, which enforcement requests for ECtHR decisions, would reduce the risk of direct interference as well as serious consideration of by the executive powers; requests for repeating the hearings for 12 | Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police

ÂÂThe capacity of prosecution offices ÂÂThe police should be more transparent needs to be increased, so they can provide when handling claims from citizens and adequate arguments in detention motions, legal entities, and inform the public supported by adequate evidence; prosecution of all cases by forwarding the ÂÂThe methodology currently applied to relevant documentation; collect and process data about motions and decisions on issuing detention orders Structural Recommendations is not in line with Council of Europe and EU regarding the Secret Service recommendations, and to a great extent ÂÂDespite the adoption of a new law does not reflect the actual situation. It which marked the start of security service needs to be aligned and improved. reforms, they are still not completed. More Structural Recommendations efforts are needed to precisely define and regulate Secret Services competences in regarding the Police order to avoid abuse of legal authority for ÂÂReforms of the police and other political purposes, or damaging human investigative authorities, as well as rights. those of the secret services, should be ÂÂGreater attention should also be paid implemented in a more transparent manner to the legal framework and operational and the competences of all these bodies conditions for the oversight and control should be clearly defined over these services Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police | 13

INTRODUCTION

The rule of law and curbing corruption are nally, the EU’s support is vital now that the so- two key criteria for EU accession. Yet between called ‘cluster on fundamentals’ (especially 2006 and 2015, EU member states failed to ac- chapters 23 and 24) has been formally opened. knowledge a decline that ultimately led to the abandonment of the rule of law in North Mace- donia, and has contributed to a serious deteri- oration in the political situation in the country. Only after SDSM disclosed illegally wiretapped conversations that contained evidence of the abuse of power did the European Commission’s 2015 progress report refer to backsliding and direct political interference in the judiciary. As a result of the deteriorating political situation, the 2016 report confirmed the findings of the Priebe-led senior experts’ group and noted the state and institutional capture of North Mac- edonia. State capture is a situation where the actions of individuals, groups, or firms both in the public and private sectors, influence the formation of laws, regulations, decrees and other government policies to their own advantage, as a result of illicit and non-transparent provision of private benefits to public officials.1 The Commission’s use of the term “state capture” to describe North Macedonia in 2015 has been superseded in the most recent reporting periods (2018, 2019 and 2020), which also noted some progress in the urgent reform priorities, including judicial reform. Despite this progress and recommendations to start EU accession negotiations with North Macedonia, state, judicial and police capture has ongoing consequences. Systemic weaknesses need to be identified and a serious analysis of potential reforms to the judicial system carried out. Fi-

1 Available at: http://iacconference.org/documents/ statecapture.pdf 14 | Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police

METHODOLOGY

This research applied a combined method- reports of the courts, extraordinary schedules ology approach2 for collection and analysis of of judges; quantitative and qualitative data to assess the ÂÂMonitoring relevant court processes by the institutional and legal framework of the judi- All for Fair Trials coalition; ciary, public prosecution and the police, with ÂÂInterviews conducted with judges, lawyers, a view to identifying the mechanisms used to court presidents, experts and members of non- abuse these institutions. The quantitative and governmental organizations; qualitative data was collected through free- ÂÂAnalysis of European Court of Human dom of information requests. Rights case law related to applications that challenged the justification of detention Analysis of information from various sources orders; (desk research): ÂÂDecisions on detention orders. ÂÂThe Constitution of North Macedonia, relevant laws and regulations, bylaws, Based on these sources, the researchers strategies, policies related to judiciary, public developed five analyses that cover system- prosecution, police and secret service; ic weaknesses of the justice system and the ÂÂPublicly available reports published by ways in which the judiciary, public prosecutors international and national institutions relevant and police in North Macedonia became subject to the topic of state capture and legal system to state capture. BIRN conducted six journal- reforms; istic investigations into elements of this sys- ÂÂReports by non-governmental organizati temic abuse. ons; ÂÂAcademic papers related to the judiciary, public prosecution and the police; ÂÂDisciplinary procedures initiated against public prosecutors; ÂÂState Statistical Office reports; ÂÂMinutes from sessions held by the Council of Public Prosecutors and by the Judicial Council; ÂÂMinutes from oversight of the Automated Court Case Management Information System (ACCMIS) at the courts, including annual

2 This methodology builds onthe approach of the methodology used in the study: When Law Doesn’t Rule: State Capture of the Judiciary, Prosecution, Police in Serbia. Available at: https://www. opensocietyfoundations.org/publications/when-law- doesn-t-rule-state-capture-judiciary-prosecution- police-serbia CS1: THE STATE ATTACK ON OPEN SOCIETY BIRN investigated how North Macedonia’s former ruling party abused state institutions to take on George Soros

Author: Goce Trpkovski

By the time the former leader of North Mace- The State Commission for the Prevention donia’s VMRO-DPMNE party Nikola Gruevski took of Corruption played a key role, after the initial to the stage outside the State Election Com- ground was laid by media and the ad hoc body mission on December 17, 2016 and announced of the Agency for Audio and Audio-Visual Media the de-Sorosization of the country, the pro- Services (AAAVMS). Later the Public Revenue cess had already entered an advanced stage. Office, the Public Prosecutor’s Office, the MoI, Three weeks earlier, the institutions had begun the Financial Police and lastly the Financial In- preparing the grounds for detailed financial telligence Administration became involved. audits of 22 non-governmental organizations. Intensive audits of 22 NGOs lasted several The country had just held snap elections, months, yielded nothing illegal, and resulted and the results meant that VMRO-DPMNE in neither accountability for those who ordered might lose power after running an 11-year au- or implemented them, nor in systemic changes thoritarian-style government distinguished by that would prevent institutions from launching state capture. The party fought aggressively politically-motivated attacks on civil society to remain in power and labelled its opponents organizations. “traitors” or “enemies of the state”. Organiza- tions supported by George Soros’s Open Soci- ety Foundations were among the first in line. NEW LIGHT ON EVENTS Party rhetoric and institutional behavior The NGOs targeted by this operation had should be kept apart. But in the case of VM- long suspected that the attacks on them RO-DPMNE, they were not. Gruevski’s party did amounted to the abuse of institutions by a po- not only create an anti-Soros ideology, but litical party. The audits were accompanied by drove the process. Together with the State an intensive political and media campaign to Commission for Prevention of Corruption, they “settle accounts with the destructive policies wove a net around dissenting civil society or- of SDSM/Soros and their paid megaphones” - ganizations. rhetoric that came from the then VMRO-DPMNE BIRN’s investigation reveals that the op- leader Nikola Gruevski and other prominent eration that took place before and after the party members, well known for their radical 2016 parliamentary elections was coordinated, views. politically-driven and involved multiple institutions. The documents we obtained and the testi- The documents we obtained and the monies of people involved in the process show testimonies of people involved in that institutions made rapid decisions that the process show institutions made rapid decisions that unquestioningly unquestioningly accepted allegations made accepted allegations made by VMRO- by VMRO-DPMNE. These allegations were later DPMNE. These allegations were later used as the sole justification for comprehen- used as the sole justification for sive document audits and searches. comprehensive document audits and searches. 16 | Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police

The documents obtained by BIRN from the were accused of being “perpetrators of illegal State Commission for the Prevention of Cor- action”. TV broadcasts by Sitel, TV Nova, Net- ruption and Conflicts of Interest (SCPC), which press and Telegraf were quoted, and similar contain communications between the party, statements repeating the narrative appeared the commission and the investigative bodies, in Deneshen, Republika, Kurir, Press 24, Vistina confirm the suspicion of strong partisan influ- and others. All these were controlled by VM- ence over the entire process. RO-DPMNE. That is most evident in the deadlines for The articles claimed that “Soros has already action. It would take only a business day for started the SDSM campaign” and would then the Commission, then headed by Igor Tan- describe a We Decide truck driving through turovski, to conclude that VMRO-DPMNE’s al- Ohrid spreading the anti-VMRO-DPMNE mes- legations - which had relied on media reports sage. They went on to describe a video “sent to - were sufficient grounds to order detailed fi- the editorial office” that showed a We Decide nancial audits. member “taking money for work done” from a On November 28 2016, the party, through man in a vehicle “legally owned by the Open its lawyer and long-time member, Ilija Ilijoski, Society Institute”. filed a complaint with the SCPC, citing allega- A quotation would then follow about the tions made by TV and online news outlets that finding of the ad hoc media body that organi- “Soros” funded civil society organizations (as zations should be careful not to play any part stipulated in the document) and that civil so- in the electoral process. The articles neither ciety activists who presented themselves as confirmed these findings nor sought comment independent citizens actually worked for and from the other party, and were intended to im- advocated the views of opposition party SDSM. ply that the NGO was using the same messages Members of the civic action group We De- as SDSM. cide, and all 22 organizations involved in it,

EXPEDITED INVESTIGATIONS

The officers from the Anti-Corruption Com- made to the Financial Intelligence Administra- mission needed only one business day to pro- tion for the execution of a five-year audit. cess the case, and to conclude that the alle- These institutions did not take long to re- gations were sufficient grounds to require a spond. The NGOs testify that the following complete audit of the financial operations of week, on December 5 2016, they began receiv- these organizations for a period of 12 months, ing calls from the PRO announcing pending in- from January to December 2016. By November spections. Meanwhile, at the public prosecu- 29, they had already forwarded these requests tor’s office, according to a response sent to to the Public Revenue Office and the Public BIRN, two prosecutors from the department for Prosecutor’s Office. prosecuting organized crime and corruption In the correspondence they state that they were engaged. Due to the volume of materi- were acting following an application, but failed al requested, they had to form cross-depart- to mention who from. Instead, they copied mental teams in order to conduct the inves- almost all the content of VMRO-DPMNE’s sub- tigations. mission, only adding their request for the ex- Igor Tanturovski and Goran Milenkov were ecution of financial audits. A month later, on not only publicly associated with the then rul- December 28, 2016, an identical request was ing VMRO-DPMNE, but were also party donors The prosecutor’s office put together an cross-institutional team to conduct audits | Photo: BIRN

before taking office (Tanturovski in 2012 and This fact was, however, hidden from the Milenkov in 2011). They gave a thousand euros public because the case was then classified. each. No information about it exists in the Commis- On December 6 2016, the SCPC sent a let- sion’s annual reports, which is uncommon. ter to VMRO-DPMNE to confirm their suspi- Tanturovski and Milenkov acted as the main cions,and proceedings were initiated. Accord- channel through which the party’s desire to ing to sources from the then Anti-Corruption persecute NGOs was carried out. They refused Commission, who insist on anonymity, Milenkov to comment on past events, given they were (who was known to have protected Gruevski on no longer members of the Commission. previous occasions) made an initial attempt to “I have been out of there for two years persuade the Commission itself to open a case now and I no longer intend to comment on the following a rumor, but his motion was not ac- matter,” said Tanturovski for BIRN. Milenkov’s cepted by the other members. response was similar: he insisted that every- Afterwards, VMRO-DMPNE filed a complaint thing that could be said about the matter had about the same issue, and Tanturovski as- already been said. signed the case to Milenkov. SCPC’s sources The audits were carried out at the same say the case was handled at high speed, in a time as the election campaign, voting and vote tense atmosphere and in the utmost secrecy. counting. VMRO-DPMNE protested to the State The Anti-Corruption Commission can open Election Commission against the annulment of investigations on its own, following public and the election results at some polling stations, media information, or can investigate com- which jeopardized their two-seat majority (51 plaints filed by others. In this case, it was the to 49 for the then opposition, SDSM). refusal of the other commissioners to accept Party members would gather every af- Milenkov’s proposal that forced the party to file ternoon in front of the SEC offices, outside a complaint, thus officially leaving its mark on the former Nova Makedonija building, to hear the case. speeches by prominent party officials such as 18 | Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police

Filip Petrovski, who spoke of “putting an end to take on critical NGOs. “We will fight for the to the Soros media”, or Valentina Bozhinovska, de-Sorosization of the Republic of Macedonia who called for “the night of the long knives”. and the strengthening of an independent civil On December 17 2016, on a foggy and pol- society sector, which will not be under any- luted afternoon on which the speakers could one’s control. Regulation of foundations and barely be seen, Gruevski himself took to the NGO funding will be introduced, following the stage and read VMRO-DMPNE’s five-point example of the most advanced democracies in proclamation, which announced its intention the world,” he said.

WHAT WAS THE WE DECIDECAMPAIGN?

We Decide campaign materials can still zations to organize campaigns of public inter- be found on the website of the same name. est and educate citizens. However, they must They include information about public events, ensure their messages are not identified with newspaper articles, videos and other multime- the messages of the electoral process partici- dia content made by 22 organizations support- pants,” the statement read. ed by the OSF. This opinion was included in VMRO-DPMNE’s They urge citizens to vote, and pressure complaint to bolster their argument that the candidates to address key economic, social, SDSM campaign was being illegally managed legal and environmental issues, as well as and funded by NGOs. public services, like education and health. The The Open Society Foundation stated that situation in all these areas is described as un- a campaign was organized in the pre-election satisfactory. period for the purposes of educating and in- The NGO campaign started with a public forming voters, rather than helping the oppo- event in front of the Assembly on October 20 sition. 2016, and the first videos were released on “All the findings we produce are based on November 14. A day later the Provisional Com- research, analysis and monitoring. We stand mission for Monitoring of Media Broadcasts re- behind our point of view, and if our narrative leased a statement. This was one of the hybrid overlaps with someone else’s, that is coin- institutions established after the major parties cidence. One can expect critical civil society reached an agreement backed by the EU and opinions to partially overlap with the views of US, which was supposed to secure conditions the opposition, but that does not mean we for fair parliamentary elections. It included two have been favoring any one option,” says Fani SDSM members (Goran Trpenoski and Ljubom- Karanfilova Panovska, FOSM’s Executive Direc- ir Kostovski) and two VMRO-DMPNE members tor. (Cvetin Chilimanov and Slagjana Dimishkova). In January 2017, Cvetin Chilimanov, actigng Ljuljzim Haziri, who was not a member of any as a freelance journalist, launched the “Stop party, was President. Operation Soros” movement along withthe As soon as the first videos were broad- journalist Nenad Mirchevski and the historian cast on Telma and Alsat-M, the body issued Nikola Srbov (who was not directly affiliated a statement warning that the Electoral Code with the party at the time, but would later be- should be adhered to. “The Interim Commission come a member of its Executive Committee). respects the right of the civil society organi- Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police | 19

HEALTH AND ECOLOGY

HEALTHY ENVIRONMENT

Screenshot of the NGOs campaign video on environmental challenges. | Photo: YouTube

“Stop Operation Soros” held press confer- ed by the inspectors during the audits ended ences to reveal which organizations had re- up with SOS members, to be used at their press ceived money from various donors, such as conferences. FOSM or USAID, claiming they had spent $5m in “’Stop Operation Soros’” knew about a grant funds over five years to destabilize the Mace- we received in November 2016. That grant had donian political scene. not yet been entered in our annual reports, so The five-year period coincided with the pe- they couldn’t have known about it except from riod of investigation that the SPC ordered into the Public Revenue Office. Only they had the the 22 NGOs. Biljana Bejkova of the NGO Info- information about the amount of funds trans- Center suspects that some of the data collect- ferred,”she said.

LONG AND STRESSFUL INVESTIGATIONS

“The state has the right to inspect and organizations targeted by the de-Sorosization perform audits and no one can deny that. But process. what happened to us was a vague and shady Hundreds of employees or supporters of act that blocked our work, pressured us and these organizations recall six months spent in spread fear.” fear of being either arrested or framed. This view was shared by representatives Faced with financial controls internal- of the Helsinki Committee, the NGO Infocen- ly and a media campaign against them, they tre, Metamorphosis, Eurothink, JEF and other suspected it was only a matter of time before 20 | Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police

they would be publicly arrested. They feared The inspections, according to testimonies fictional accusations and that the law would by staff, created extra work for the employees. be twisted to charge them with abuse. They had to prepare documents, make photo- “On the one hand I was calm when it came copies, do translations, and explain account- to finances, because I knew everything was ing items. Time, money, resources and people fine, but on the other I was not calm because I were wasted, and the audits seriously ham- knew malign intentions backed up the action,” pered the regular activities of the non-govern- says Uranija Pirovska, the executive director mental organizations. of the Helsinki Committee. The inspectors be- Some of the requests were extraordinary. haved professionally but had absurd demands Karanfilova-Panovska of FOSM says that the that could barely be met. They demanded re- PRO inspector, who would spend entire days views and photocopies of all the documents, at their premises, had requests that fell out- which amounted to thousands of pages for side the institution’s scope. “The PRO seemed each organization to be trying to establish that we were working on indoctrination. We were interrogated about In May 2019 the Macedonian Parliament what we did, they requested materials, and specified that travel expenses, catering were more interested in the programming and and the like should not be liable to the content part of our work than the financial personal taxation. The state has taken aspect,” Karanfilova-Panovska said. no further steps since the change in She adds that no inspector raised ques- government. tions about the We Decide campaign, even though it had prompted the entire investigation. All activities came under scrutiny in the effort to find incriminating material. “They were trying to find evidence that NGOs The intensity of inspections dwindled after were channelling funds to pay non-employees the storming of the Macedonian parliament on who actually worked for SDSM. They most cer- April 27, and after the change in government tainly did not find that,” says Filip Stojanovski on June 1, the investigative bodies only rarely from Metamorphosis. made contact.

Screenshot of the NGOs campaign video on environmental challenges. | Photo: YouTube Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police | 21

A year after the change of power, in 2018, Some representatives from the organi- the Minister of the Interior, Social Democrat Ol- zations said that during the meeting with iver Spasovski, summoned the organizations to Spasovski, they requested internal inquiries a meeting, which was also attended by direc- into possible abuse of office for those who or- tors of the institutions involved in the investi- dered and carried out the investigations, and gation. They were told that the investigations that he agreed. However, the Ministry did not against them had been suspended and that respond to BIRN’s question about whether any nothing illegal had been found. action had been taken.

WHAT HAPPENED NEXT

In the end, nothing. After investigators had In May 2019 the Macedonian Parliament auditedtens of thousands of pages of docu- specified that these costs should not be liable ments in each organization, some individuals to personal taxation. The state has taken no were reported for not having paid personal further action in the matter since the change income tax for travel costs, conference cater- in government. ing, humanitarian aid and similar payments. Some organizations received written noti- The law fails to stipulate whether this type of fications from the PRO or other organizations expenditure should be subject to personal in- that the investigation had ended. No one re- come taxation. ceived notification from the Prosecutor’s Of-

The protests “For a joint Macedonia” and against “Soros” culminated in the bloody events of April 27, 2017, after which the investigations lost momentum.| Photo: Robert Atanasovski 22 | Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police

fice, since the matter was treated as a prelim- Some of the institutions failed to respond inary investigation. Prosecutors told BIRN that to our questions; others said that internal au- when the investigation was finished, they de- dits were not performed by them, since they cided to close the proceedings. acted professionally at the behest of the “After a thorough analysis of all evidence, Prosecutor’s Office, which they had no legal no grounds for suspicion were found which grounds to contest. may indicate a crime of ‘money laundering “I have neither promised an internal in- or other proceeds of crime’, nor were any el- vestigation about the case nor done anything ements of a crime liable to be prosecuted ex similar in this institution,” says Arafat Muaremi, officio found, and [we] concluded that for this who was appointed Director of the Financial specific case, a prosecutorial action should Police by the Social Democrat government in not be pursued. Therefore the case was closed 2017. in December 2017,” reads the response sent to All in all, dozens of people, prosecutors, BIRN by the Public Prosecutor’s Office. inspectors from institutions were engaged in The Office failed to explain how an electoral the process, and spent months using state malpractice case had become a money laun- resources to conduct politically driven and bi- dering and tax evasion investigation. ased audits. Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police | 23 CS2: MACEDONIAN PROSECUTORS CAN DO AS THEY PLEASE There is little to no accountability for lazy or corrupt prosecutors, revealed BIRN’s investigation. Author: Vasko Magleshov Not a single aspect of the work of public In 2016 the Macedonian public rallied in prosecutors has remained free of political support of Janeva and her team, celebrating pressure in North Macedonia: from the election them as heroes who would bring oligarchs and of prosecutors and case handling by prosecu- corrupt officials to justice and put an end to tors, through to the (lack of) accountability for politically-controlled trials. Four years later, their actions. Nor is there a single example of Janeva is on trial for extortion. these influences and connections being in- The Second 2017 EU Experts Report stated vestigated, let alone proven. that the Public Prosecutor’s Office for Prose- The link between the prosecution and pol- cuting Organized Crime and Corruption was un- itics could be described as a “Stockholm syn- der direct and indirect pressure. But even after drome” in which the captured have developed both EU reports, and despite Janeva’s case, no an emotional relationship with their captors one has ever fully investigated this assertion. and even help them to achieve their goals. More than five years after the creation of the SPO, the ability of prosecutors to resist political pressure is still in doubt. The extent to POLITICAL INTERFERENCE IN which their ties to business and political elites PROSECUTING CRIME have obstructed or delayed investigations is also unclear. In the absence of credible insti- When party leaders agreed in 2015 that tutions that can investigate, the public has tackling organized crime would be a state concluded that prosecutors are in the pockets priority, few could have imagined that Katica of politicians. Janeva, the head of the institution set up to While not everyone’s probity is in question, fight it, would betray the trust placed in her so those with experience of the justice system spectacularly. publicly acknowledge that some prosecutors The Special Public Prosecution Office (SPO) are partisan. “We have politicized prosecutors was purposely designed to sit above the rest who do not at all deserve to hold office,” the of the justice system, since the regular prose- former public prosecutor Ivan Jakimovski told cutor’s office was criticized for being in hoc to BIRN. He believes his colleagues were quietly the ruling party. The SPO gained full autonomy working with politicians. and sat outside the hierarchical prosecution system. Заслепена правда: До заробена држава во Северна Македонија - судство, јавно обвинителство и полиција | 25

The State Public Prosecutors, leaders of the prosecutor’s offices | Photo: BIRN

FILED UNDER ‘MISCELLANEOUS’

When the SPO began its investigations, the These investigations, some of which had first sign of a problem was the number of un- been relaunched, resulted in 22 indictments. resolved indictments. They included numerous Only few have been resolved so far. financial and wiretapping cases. According to “Eighty to ninety percent of the cases we data obtained by BIRN, the cases the SPO took took over were superficially processed. Only over were registered with the initials RO, which sporadic requests were sent to the MoI, in or- in prosecutors’ jargon means ‘miscellaneous’. der to leave the impression, a trace, that some If the prosecution finds sufficient grounds action was taken,” said an SPO prosecutor who for suspicion and evidence, the complaints are wished to remain anonymous. then re-registered under KO, for pending in- Among the 72 were seven cases (five from vestigation. The decision as to how the case the Skopje Prosecutor’s Office and one each is to be assigned is made by the Chief Pros- from Organized Crime and the Bitola Prose- ecutor. cutor’s Office) which were rolled into the so- However, all 72 cases that the SPO took called Empire case, which involves one of the over from the regular Prosecutor’s Office to wealthiest businessman in the country. Over reinvestigate were registered as RO, which the course of nine months the SPO revived means that not a single one proceeded to the some of the charges, but when its mandate investigation stage. Of the 72, the SPO opened ended they were returned to the original offic- investigations in 53 cases. es. 26 | Заслепена правда: До заробена држава во Северна Македонија - судство, јавно обвинителство и полиција

12 PROSECUTORS DISMISSED les was convicted for the so-called Liquidation IN 11 YEARS case, but the Supreme Court overturned the verdict and returned the case for retrial. The 170-180 prosecutors in North Macedo- Dismissals peaked in 2009, when eight out nia do not enjoy immunity as judges do, but the of a total of 12 prosecutors were dismissed. Law on Public Prosecutors protects their activ- But not everyone is convinced that they were ities. They can be disciplined or dismissed, but made on the grounds of incompetence, point- are appointed by the Council of Public Prose- ing instead to political motivation. Sterjo Zikov, cutors. Between 2008 and 2019 nine prosecu- a former head of the Skopje Prosecutor’s Of- tors were dismissed for professional miscon- fice and now a lawyer for defendants in SPO duct, two for disciplinary violations and one cases, was removed for failure to take action after being convicted of a crime. and professional misconduct. But he told BIRN: The SPO’s former head, Katica Janeva, is “It was a political decision which hurt me, not the second public prosecutor in eleven years because of the loss of office, but because of to stand criminal trial. Ivica Efremov from Ve- my peers.”.

Case against Katica Janeva preceded the shutdown of the SPO | Photo: BIRN Заслепена правда: До заробена држава во Северна Македонија - судство, јавно обвинителство и полиција | 27

CASES BASED ON HEARSAY EVIDENCE ARE A TINY FRACTION OF THE TOTAL

Cases involving hearsay evidence account- veski, does not entirely agree that prosecutors ed for between 1.8-3.8% of the total between are indifferent to public opinion. He says that 2014-18 – an small but steady increase on the last year, 18 cases were initiated on this basis, 2% in 2014. But in 2018 the proportion began including one concerning racketeering. ‘We to fall again, to 1.8%. worked based on what the Prime Minister had The State Public Prosecutor, Ljubomir Jo- told us,’ he said..

The State General Public Prosecutor reassures people that more work is being done on cases involving hearsay evidence | Photo: BIRN 28 | Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police

PROSECUTORS’ IRRESPONSIBILITY AFTER THE ASSEMBLY WAS STORMED

Prosecutors’ ties with the ruling party may the Assembly, were criminally liable,” a prosecutor be best illustrated by the events of the night from the same institution testified to BIRN. of April 27, 2017, when a mob stormed the As- Prosecutors were held responsible. A five-mem- sembly and threatened the lives of MPs who ber disciplinary committee heard their defense voted for the nomination of Talat Xhaferi as and concluded that they failed to conduct an investigation following the storming of the Assem- Assembly Speaker. bly, thereby allowing for evidence tampering. Their “That night, in the Prosecutor’s Office salaries were cut by 30% for six months. Howev- headed by the State Public Prosecutor Marko er, the case has now gone to appeal and is still in Zvrlevski, there was a discussion about wheth- progress, although the event took place more than er the SDSM leadership, which had a majority in three years ago.

THE STATE PUBLIC PROSECUTOR IS APPOINTED WITH THE BLESSING OF THE RULING PARTY

The election of the State Prosecutor is the misconduct. Only one completed his six-year subject of intensive bargaining between po- term. All the dismissals occurred shortly after litical parties. Assembly transcripts show a a change in government. As Aco Kolevski, the consistent pattern, regardless of which par- President of the Council of Public Prosecutors, ty is in power, and the successful candidate put it: ‘The State Public Prosecutor is changed never enjoys cross-party support. Aleksandar when the government changes.’ He believes Prchevski, at the time of his dismissal as State the election needs to be reformed so the gov- Prosecutor in 2006, summarized his view: ‘I am ernment no longer proposes the candidate: probably the last fool to accept the position.’ ‘Usually, whoever got him elected is the one who can replace him. The election should be Between 2016 and 2018, there have made by the Council [of Public Prosecutors] or been a total of 512 complaints about following a citizens’ vote, so the new SPP can prosecutors’ work. Almost half of them be accountable to the citizens who elected (201) were filed in 2018, indicating that him or her.’ the number is increasing. Joveski disagrees, pointing out the candidates would need to campaign and raise funds, and would feel obligated to their backers. He Of the five state public prosecutors ap- suggests that the President rather than the pointed since the new legal framework was government proposes the candidate: ‘There is adopted, four have been dismissed by the As- no way a president would tolerate a prosecutor sembly due to incompetence and professional tainted by scandal.’ Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police | 29

The State Prosecution Office. Prosecutors are nominated on the basis of TV appearances rather than on merit. | Photo: BIRN

SELECTION OF PROSECUTORS THROUGH LOBBYING AND INFLUENCE The minutes of the meetings at which these In North Macedonia, the Council of Public decisions happen suggest that little proper dis- Prosecutors is responsible for electing and cussion takes place, with the Council focussing on dismissing members of the profession. It ful- how often the prosecutor has appeared on TV and fills a similar role to the Judicial Council for their opinions of their fluency or personality. Judges. The Councils themselves cannot be disciplined or held liable.

CITIZENS PAY FOR PROSECUTORS’ FAILINGS

Compensating the victims of prosecutors’ In the Coup case, it exceeded EUR50,000 and in the negligence or incompetence is expensive, and Justitia case, thousands of euros. The Tank parts the money comes from the national budget. case, in which the former PM Vlado Buchkovski The Sopot case, in which villagers were was charged, is also likely to attract large sums in accused of planting landmines that killed NATO damages. Yet these are negligible in comparison to soldiers, led to more than EUR1m in damages. the damage inflicted on trust in the rule of law. CS2: Macedonian 30 | Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police prosecutors can do as they please There is little to no accountability for lazy or corrupt prosecutors, revealed BIRN’s investigation. СS3: STATE CAPTURE IN Author: Васко Маглешов THE STORY OF CAPTURED COURT SOFTWARE Until it was exposed by BIRN’s Priebe Report, the abuse of the ACCMIS court management system was ignored by judicial authorities. Author: Vasko Magleshov

Five years after suspicions were first raised come and that state corruption has been that ACCMIS (the Automated Court Case Man- tackled. The Law on Courts has been amended, agement Information System) had been tam- judges are discouraged from meddling in cas- pered with, nothing has changed: the system, es by institutional oversight, and the software the judges and the software at the criminal operates without obstruction or interference. court in Skopje remain the same. Only the gov- Yet domestic institutions have been apa- ernment and the President of the Court are dif- thetic in tackling the issue. The BIRN investiga- ferent. tion showed that the abuse of the ACCMIS sys- The Office of Public Prosecution confirmed tem was invisible to both the Judicial Council the abuse, and the former President of the and the Supreme Court until it was mentioned Criminal Court, Vladimir Panchevski, faced in the EU Report of the Senior Experts’ Group on charges, but the trial has been pending since Systemic Rule of Law led by Reinhard Priebe, late 2019. although it was a public secret that both judg- Nonetheless, the government claims that es and officials had complained about being the case allocation problems have been over- verbally instructed to handle specific cases. Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police | 31

EVERYTHING STARTED WITH PRIEBE

Priebe’s 2015 report said: “It is perceived short, the system was manipulated by clerks at that the rules (on operation of ACCMIS) are not the verbal request of court presidents, so that always adhered to and ways can be found to fewer judges were available to take on specific circumvent the system.” In his 2017 report, he cases. went further, directly recommending that an The ministry set up a special task force impartial audit replace the ACCMIS system. to establish potential systemic wrongdoings. ‘Unfit’ judges were transferred to different As a result of the Report and the ensuing in- sections of the court, cases were not assigned vestigation, the Prosecutor’s Office brought to judges who were on leave at the time of the charges against the then President of the request, judges tried cases pursuant to both Criminal Court, Vladimir Panchevski, for abuse the old and new criminal procedure laws – in of power and office.

The Ministry of Justice. Charges were brought in the ACCMIS case in late 2019, but the trial is still pending | Photo: BIRN

THE JUDICIAL COUNCIL AND THE SUPREME COURT FAILED TO SEE ANY PROBLEM

The Judicial Council, which is the only insti- 2015 that not all changes to 2014 Adminis- tution that monitors the courts, behaved as if trative Court cases had been entered into the nothing had gone wrong with the case alloca- ACCMIS system. But Council members failed tion in the criminal court, BIRN’s investigation to act. A month later Bekim Rexhepi raised shows. the topic at a Council meeting and asked for A detailed examination of Judicial Council a committee to be set up to investigate the transcripts from 2015 to 2017 indicated that software. the Council was alerted by mid-September 32 | Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police

The members of the Judicial Council saw no problem with ACCMIS (2017) | Photo: BIRN

Members opposed the proposal. They ar- Judges from the criminal court, who wish gued that the Council had no such jurisdiction, to remain anonymous, confirmed to BIRN that and that no irregularities in case distribution they did refuse to work on cases the court had been reported up until then. The judg- president had instructed them to take up. As a es of the Supreme Court, which monitors the result, they were reassigned to less influential lower courts, had also failed to see any prob- departments. lem. BIRN’s investigation showed that between We requested information from the Judicial 2012 to 2018, not a single report by the highest Council about these allegations, but the Coun- authority on the activity of the country’s courts cil declined to respond, saying it would violate mentioned irregularities or software perfor- judges’ freedoms, rights and integrity. mance problems. Yet the SPPO (Special Public Prosecutor’s Office) saw a problem as far back as 2016. They Violations of procedure have also been noted that the court had rejected submissions detected in the Supreme Court. A judge under the pretense that they were unclear and who extended their sick leave was shut imprecise. In one instance, search warrants for out of the system a month after it. In senior officials were submitted to one judge, addition, and in violation of the rules, only to be later dismissed by others as inval- electronic allocation of a small number id. The SPPO called for five judges to be dis- of cases was carried out multiple times missed, but this was not acted upon. . in one day. COURT PRESIDENT ACCUSED AFTER THREE AND A HALF YEARS OF TAMPERING

The Skopje Prosecutor’s Office claims that the judiciary became corrupted, claimed to Vladimir Panchevski, the former president of BIRN that his actions were lawful. He pointed the criminal court, tampered with software out that he had assigned all the cases on the in the Skopje First Instance Court 1 for three basis of criteria stipulated in the Rules of Pro- and a half years between January 2013 and cedure of the Court. September 2016, shortly before the end of his “I have not assigned cases contrary to the mandate. During this period he ordered offi- law. That is allowed pursuant to the law and cers with access to ACCMIS to manually assign the Rules of Procedure, and the cases are not cases to judges. Normally they would be as- mine, but are Prosecutor’s Office and the Re- signed electronically. public of Macedonia cases against people who Panchevski, who was elected court presi- broke the law and were tried by judges elected dent during the VMRO-DPMNE government, and by the Judicial Council.” He did not want to an- who has repeatedly shared Facebook posts swer other questions. alleging that after the change in government

The presentation of the findings of the working group’s report at the Ministry of Justice (2017) | Photo: BIRN 34 | Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police

WAS THERE WRONGDOING BEFORE THIS ABUSE?

Ever since ACCMIS was launched in 2010, the system. Most of them were successful ap- there have been no written internal procedures plications for pre-trial detention. for its use. The Ministry of Justice established No high-profile cases were found among in its Oversight Report that the Case Tracking them, with most convictions concerning nar- Working Group stopped operating in February cotics or the smuggling of migrants. One in- 2012. Judge Nanev, who prepared the report, volved the former General Manager of the Ohrid told BIRN that the Group was due to be wound Komunalec utility company, who received a down at that time and there was no evidence of suspended sentence for rigging a bid. Another wrongdoing before it concluded its mandate: concerns a civil servant working in the agri- “Were there cases manually allocated culture and rural development agency. He also during that period? The answer would be arbi- received a suspended sentence for a kickback trary, since no evidence exists to identify such tied to a tractor subsidy. cases and substantiate the alleged manual If Panchevski is convicted, everyone allocation.” who was convicted by a judge who was According to the Oversight Report, the manually allocated may be eligible for a majority (41) of the manually-assigned cases retrial. came from the Public Prosecutor’s Office for Prosecuting Organised Crime and Corruption, two cases from the Special Public Prosecutor’s Other manually-allocated cases include Office, four from the Skopje Prosecutor’s Of- Fortress 2 (about the illegal destruction of fice and two from the First Instance Courts of files related to wiretapping) and Violence (in- Negotino and Kumanovo. Thirty-three of them volving the former Prime Minister Nikola Grue- were manually assigned in 2013. BIRN inspect- vski) which were given to Tatjana Mihajlova and ed a dozen of the criminal cases and conclud- Lidija Petrovska, judges close to Panchevski. ed that it was difficult to prove that Panchevski They are no longer hearing these cases, which had benefited personally from tampering with are ongoing.

LAWYERS HAVE MANIPULATED THE SOFTWARE TOO

The loopholes in the ACCMIS system were would either drop the complaint or fail to pay not exploited only by Panchevski, but also by a court fees,” says Deskoska. small number of lawyers. According to the Min- Another option, according to lawyers con- ister for Justice, Renata Deskoska, they would sulted by BIRN, was to enter different data repeatedly file the same case, then retract it, about the parties in the complaint (e.g. an until they got the judge they were seeking. alternative name and surname). The system “We have learned that in some courts, lawyers would identify them as separate cases, and would file multiple complaints on the same the court fee would only be paid for the case legal grounds, and depending on the match- involving the judge the complainant preferred. ing of the case allocation to a specific judge, Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police | 35

PROSECUTORS ARE AGAINST CASE ALLOCATION SOFTWARE

Although the prosecution offices do not the 2019-24 Strategy for ICT in the Judiciary use an automated system for allocating cases, foresees software upgrades. The General Pub- it is still possible for the choice of prosecutor lic Prosecutor, Ljubomir Joveski, warns that to be manipulated. Criminal charges are allo- very junior prosecutors would not necessarily cated to them in Roman numerical order, which be able to handle major criminal cases. allows chief prosecutors to reassign them if ‘The ACCMIS system would not work for us,’ they wish. says the Chairman of the Council of Prosecu- tors, Aco Kolevski. ‘Usually criminal charges It would theoretically be possible to ensure are filed as they arrive and the gravity of the a prosecutor was assigned a particular case case cannot be evaluated at that stage.’ by manipulating stacks of documents. Alter- But the Anti-Corruption Commission mem- natively, a case could be assigned some time bers disagree. They stated in the Strategy that after it was received to match it with the ‘right’ manual allocation of cases risks their being prosecutor. deliberately matched with certain prosecutors. Prosecutors consulted by BIRN oppose in- asko. troducing case allocation software, though

The Anti-Corruption Commission delivers case allocation software to the Public Prosecutor’s Office | Photo: BIRN 36 | Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police

СS4: IS PUBLIC OFFICE THE BEST PROTECTION AGAINST JAIL? BIRN investigates if there is any truth to claims that politicians are almost never held accountable for crimes committed while in office Автор: Aleksandar Dimitrievski

Since 1998, a total of 186 people have held fice; and secondly, the prosecution admitted the posts of Prime Minister, deputy prime min- to irregularities in the case, which involved ister or minister. During their political careers, purchasing equipment from a foreign country half of them have faced at least one criminal that at the time the contract was signed did charge. But the chances of them being found not have a subsidiary in North Macedonia. guilty and jailed are about 2%. “The expert stated that the invoices sub- In July 2019, the Public Prosecutor’s Of- mitted by Svetlost Teatar Ltd in Belgrade, Re- fice in Skopje announced that it had dropped public of Serbia, to the Ministry of Culture were in euros, with a separate amount of VAT and criminal charges against three people for reck- with an account to which the money was to be lessness in public office. The three were the transferred. The subsidiary was not fully func- ex-minister of culture, Elizabeta Kanceska-Mi- tional, as the invoices were prepared and de- levska, her deputy Dragan Nedeljkovic, and the livered by the parent company, and not by the head of finances at the Ministry of Culture from branch. This created an irregular flow of mon- 2009 to 2017 (whose name was withheld). ey,” the prosecution said in a statement. This is not in itself surprising: public pros- Yet the prosecution saw no merit in pursu- ecutors dismissed about 45% of criminal ing the case because all duties were paid: “The charges filed in 2017, for example. But two expert findings and opinion were that there things make this case different. Firstly, the was no damage to the state, nor to anything charges were filed by the Financial Police Of- else.”

ALMOST HALF THE OFFICIALS FACED CRIMINAL CHARGES

How often does the Public Prosecutor’s Of- only 22 were completely dismissed (7.8%), of fice dismiss criminal charges from the Finan whom Kanceska-Milevska and her colleagues cial Police Office? According to data from Ba- were three. This lends credence to the public sic Public Prosecutors’ Offices throughout the perception that there is one rule for those in country and the Financial Police Office, the power and another for the rest of the popu- picture is this: lation. In the five-year period from January 2014 to But public perception is not a credible mea- the end of December 2018, the Financial Po- sure, so we dug deeper: is it true that politicians lice Office filed a total of 283 criminal charges are never or rarely held accountable for crimes with the public prosecution offices. Of those, they committed while performing their duties? Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police | 37

We compiled a limited list of top officials - them for abuses related to public office, all the prime ministers, deputy prime ministers at some point during or after their political and ministers who have served during the last career. Almost half (44) of the charges were two decades (from 1998 until present). Then filed by a state institution such as the MoO, we looked at the outcomes of criminal charges the Anti-Corruption Commission or the Finan- against them. cial Police Office, or the prosecution itself. The This proved difficult, as there is no insti- remaining 45 officials were involved in cases tution that collects the information, but we filed by third parties, such as political oppo- managed to establish that 89 of the 186 had nents, businesses, individuals or group ac- at least one criminal charge filed against tions.

CRIMINAL CHARGES WERE FILED, BUT THEIR OUTCOMES ARE MOSTLY UNKNOWN

While we found evidence of the charges We received replies about only four cas- laid against these top officials, it was much es – those of the Mayor of Struga and former more difficult to discover their outcome. The Minister without Portfolio, Ramiz Merko; the public rarely gets to hear when they have been former Minister of Environment and Director of dismissed. So we sent a questionnaire to the the Agency for Confiscated Property, Bashkim prosecution, asking about the outcome of ten Ameti; former Ministers for Education Nikola criminal charges filed by state institutions, in- Todorov and Pance Kralev; and former Minister volving 13 officials. for Agriculture, Aco Spasenovski. 38 | Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police

For cases before 2012, against ex-min- Mehazi, Ljubco Georgievski, Boris Stojmenov isters Agron Buxhaku, Blagoja Stefanovski, and Marjan Gjorchev, the prosecution could not Stevco Jakimovski, Bedredin Ibraimi, Xhemali reply because their database did not contain that data. Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police | 39

OF THE 89 CHARGED OFFICIALS, ONLY 17 STOOD TRIAL

Although it is impossible to check the out- More precisely, we know that the prosecu- come of all the criminal charges against the 89 tion opened a pre-trial or investigative proce- officials, public records exist in those (uncom- dure against 41 of the 89 charged officials. mon) cases when the prosecution has opened Twenty (19.1%) reached the next stage, indict- an investigation, filed charges or initiated a ment. Seventeen officials stood trial at least trial. once.

PROSECUTION AS A TOOL FOR DEALING WITH OPPONENTS

Even apart from the small number of cha Yugoslavia, ICTY3. But in these cases, too, the rged officials who have ended up in court (17) story is complicated. and the fact that 44 officials were reported by Paunovski was initially suspected in 2001 of state institutions, analysis of each of these supplying 11m German marks worth of food to cases leads to another worrying conclusion. Of the military during the Yugoslav wars. This food the 20 indicted high-ranking officials, the 17 had been produced by his father’s and broth- who appeared in court belonged to a party that er-in-law’s firms. Immediately afterwards, he was out of power at the time of indictment. threatened to speak in public about the shady The exceptions are indictments against the deals of the political party he belonged to, former Defense Minister, Ljuben Paunovski, the including the sale of the Okta oil refinery. A mayor of Struga and briefly Minister without meeting with the prime minister and his par- Portfolio, Ramiz Merko, and the reactivation of war crimes charges against Hisen Xhemaili, 3 The International Criminal Tribunal for the former which were returned to local courts from the Yugoslavia (ICTY) was a United Nations court of law that dealt with war crimes that took place during the International Criminal Tribunal for the former conflicts in the Balkans in the 1990s. 40 | Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police

ty chief, Ljubco Georgievski, followed. After he of Arben Labenista and in 2016 the Basic Court publicly repented, the amount of money Paun- in Struga acquitted him, ruling that the case ovski was accused of embezzling was reduced did not amount to a criminal offense. to 3m marks. The indictment against Hysen Xhemaili was The MoI charged Merko in 2012 with per- triggered while negotiations about the forma- mitting illegal construction. He was indicted tion of a government between VMRO-DPMNE a year later, when local elections were held. and Xhemaili’s political party, DUI, were going Merko was Mayor of Struga between 2009 and on. He had been on the run for several months 2013 but his party, DUI, did not support him in and did not appear at court or in Parliament. these elections. There was media speculation The court’s decision to revoke his detention that he had threatened to call for a boycott of despite him never turning up to court was con- the ballot if he did not receive the nomination. sidered a scandal., In 2011, after benefitting In the end, he calmly accepted the nomination from the Amnesty Law, he became a free man.

ONLY 12.5% OF CHARGES AGAINST OFFICIALS LED TO A PRISON SENTENCE

Twenty officials should have stood trial, Of the remaining 17 officials who stood trial, but only 17 did. In two cases, against Stevco eight were acquitted, whether through court Jakimovski and Spiro Ristovski, charges have proceedings or by pardon. Trials against four been filed with the court but hearings have not officials are ongoing: one has been convicted yet begun. The third indictment that did not go in the court of first instance and is awaiting to trial is for the Big Ear case against Dosta a higher court ruling, and five have been sen- Dimovska. The then President, Boris Trajkovski, tenced to life imprisonment. However, to date pardoned her at the same time the prosecu- only two, Ljuben Paunovski and Ljube Boskos- tion submitted the charge of illegal wiretap- ki, have served their sentence. ping by the MoI. Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police | 41

HOW PRIME MINISTERS AVOID PRISON

The best illustration of the leniency of the justice system towards powerful political fig- recording was no longer admissible, which in ures is the trials of Nikola Gruevski and Zoran turn made the lesser charge untenable. Zaev. Nikola Gruevski was indicted in a total When Zaev became prime minister, he had of six cases that SPO filed with the court in already received one pardon and had one June 2017. In May 2018, he received his initial charge against him retracted. In 2008 Presi- first-instance sentence (in the Tank case) of dent Branko Crvenkovski acquitted him in the two years in jail. However, the Special Public Global case, where he was suspected of the Prosecutor’s Office did not request detention abuse of power when he built a shopping cen- until the judgment came into effect, despite ter and a market through a public-private part- the fact that Gruevski had also been indicted in nership. five other cases involving more serious crimes. At the beginning of 2017, a few months before Zaev became prime minister, the SPO The only ex-ministers who have ended dropped the indictment in the Coup case, up behind bars for a crime committed which Katica Janeva’s team had taken over before, after or during their period in in December 2015. The case was opened in office are Ljuben Paunovski and Ljube May 2015 by the regular prosecution and con- Boskoski. cerned the way in which illegally wiretapped conversations were obtained. When the Assembly gave Zaev a vote of Gruevski appealed the decision, but in confidence, he had an active court case October 2018 the Court of Appeal confirmed against him (Bribery). Following a charge at the first-instance judgment. Still, it was over the Ministry of Interior’s instigation and record- a month before Gruevski finally received the ings made as part of a special investigation in order to serve his jail sentence. Yet he never 2013, in 2015 the Prosecutor’s Office decided showed up at Suto Orizari prison. The next two to charge him only with “taking a bribe”. days were a Saturday and Sunday, and the or- The then government suggested the wire- der for him to be forcibly brought to jail was taps, parts of which were leaked to the public, only issued on the following Monday. By that proved that Zaev had sought a 160,000 euro time Gruevski had already escaped to Hungary, bribe from a businessman from Strumica. Zaev where he was granted asylum shortly after- claimed the recording had been edited and the wards. conversation taken out of context. The fact No one in the court was held responsible for that the alleged bribe was never paid worked the three-day delay in ordering a search for a in his favour. But it was only after he became convicted person who did not show up compli- PM that the prosecution concluded there was ance with a sentencing order. Nor was the MoI no evidence of actual bribery, and changed the held accountable for not knowing where the charge from ‘taking a bribe’ to ‘seeking’ one. highest-profile convict in the country’s history This left the judge with no option but to free was. The failure of the SPO to ask for detention Zaev. Since the charge of seeking a bribe does after a first-instance verdict, as it would nor- not allow wiretaps to be used in evidence, the mally do, also went unpunished. 42 | Blind Justice:Заслепена To State правда: Capture До inзаробена North Macedonia држава воJudiciary, Северна Public Македонија Prosecution - судство, and Police јавно обвинителство и полиција | 42

TRIALS RESTARTED INSTEAD OF REACHING JUDGMENT

The SPO’s case files offered the country’s necessitated a restart. This led to Gruevski be- best chance to improve its record when it ing freed (in the Trajectory case) due to stat- comes to judgments and cases against senior utory limitation. officials. However, of the 26 cases that Katica One case (Tenders) was restarted three Janeva’s team presented to courts before the times. It concerned Elizabeta Kanceska-Mi- cases were taken over by the regular prosecu- levska, the same official who was one of the tion in 2019, only five led to an effective sen- 8% lucky enough to have their Financial Police tence. And only two people, the deputy Interior charges dismissed by the SPO. Meanwhile, she Minister Djoko Popovski and businessman Seat was immersing herself in politics, and left her Kocan, are currently serving a prison sentence. own party to form a caucus with several other According to a survey by the All for Fair Tri- MPs. Kanceska-Milevska was one of the MPs als coalition, as many as 13 SPO cases were who cast crucial votes in favor of changing the restarted from scratch. In most instances this constitution. Without that change, Prespa’s was because the requirement to hold at least agreement with Greece would not have come one hearing within 90 days (or 60 days under into force and North Macedonia would have the old Criminal Procedure Code) had not been been unable to continue its applications to met, or because a change in the judging panel join the EU and NATO.

POLITICAL IMMUNITY OR POLITICAL PERSECUTION

These statistics and stories point to two nesses or pressure on court judges in certain unavoidable conclusions. Firstly, top officials areas ... In our view, there are individuals in the are virtually untouchable while they or their judiciary who are unknowingly or deliberately party holds executive power. Those who have delaying the proceedings, so we do not have previously held office may be charged, but court decisions on specific cases yet.” cases proceed with agonising slowness. The second conclusion is that all indicted The late former State Public Prosecu- senior officials claim the cases against them tor, Aleksandar Prcevski, in an interview with are politically motivated or fabricated. Buck- Utrinski Vesnik in August 2003, publicly ac- ovski accused the former Minister of Justice, knowledged the failings in prosecuting offi- Mihajlo Manevski; Zaev accused Gruevski; cials, but primarily blamed the judiciary: Gruevski accused Zaev, and so on. “Obviously there are some subjective weak- Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police | 43

СS5: JUSTICE HELPLESS IN THE FACE OF UNLAWFUL PARDONS The abuse of political pardons over the last decade

Author: Goce Trpkovski

A number of Special Public Prosecution changed. For example, in 2016 the Constitu- cases in North Macedonia are now due for tional Court was reluctant to rule on whether retrial, and some of those indicted are try- Ivanov’s pardons were legitimate, but in 2019 ing to use evidence in their favor that was it decided to review the case again. Janak- previously dismissed. Fifty-six people were ieski’s defence team therefore thought it pardoned by the country’s former president worthwhile to cite the pardon. Gjorge Ivanov in 2016, and although he was Amnesties and pardon decisions are later forced to revoke the pardons, the de- evidence of how much politics has infiltrated fendants are keen to cite them in their de- the judiciary in North Macedonia. BIRN’s fense. investigation shows that four key decisions One of them is Mile Janakieski, a former have shaped politics in the past decade. They transport minister who is charged with or- allowed suspects and defendants to be active ganising the demolition of the Cosmos build- and influential participants in the political life, ing as an act of revenge against its owner, and ensured political debate could be reduced the politician and businessman Fijat Canos- to the question of who was the greater criminal. ki. Canoski had left coalition government to In at least three of these, we can identify join the opposition. when the decision has deviated from the How is it possible to cite a pardon that Constitution, laws and rules, or international was later revoked in your favor? conventions. They have never been properly Three years ago, when these trials be- reviewed and have therefore become a tool gan, it was widely expected that the cases with which parties settle their disputes. would be tried. Now the political context has

PROCEED WITH CAUTION

For thousands of years, the powerful BIRN spoke to several legal experts about have had the ability to grant mercy, and that the effects pardons have had on society. right is still exercised in modern democra- They believe that using them to achieve par- cies. Although amnesties and pardons tech- ty goals has led to a deeply divided society. nically sit outside the legal system, they can For some of the experts we spoke to, a deserve a higher purpose for the state when gree of resolution may be possible if those it is impossible to correct a wrong through pardoned can still be held accountable. For judicial mechanisms. But that power must others, any attempt to do so will only create be used carefully and judiciously, or it will be greater divisions. abused. 44 | Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police

THE ROOTS OF THE PROBLEM DATE BACK TO 2008

During 2019 and 2020 the opposition par- Commission for the Prevention of Corruption ty VMRO-DPMNE published dozens of press announced in May 2019 that it would reopen releases referring to the ‘pardoned criminal the case. Zoran Zaev’, who was until recently Prime “In this case, technically, the law was not Minister and still leads the Social Democratic broken, because the law allowed Crvenkovski Union of Macedonia (SDSM). to pass the decision. But that does not mean The decision to pardon Zaev was made by that there was no substantive violation, be- the SDSM’s Branko Crvenkovski, then serv- cause this is an option that is available to ing his final year as president, on August 2 the President for him to meet goals of the 2008. At the time, Crvenkovski said it was society, not the interests of his political par- necessary in order to prevent a political cri- ty,“ says Professor Gordan Kaladjdziev of the sis, because Zaev’s arrest – he was a Mayor Iustinianus Primus Faculty of Law in Skopje. of Strumica and a vice-president of SDSM Crvenkoski has refused to give any pub- at the time - in the Global case could have lic statements on the topic, and his office led to the opposition leaving the parliament. would not comment when we asked whether, VMRO-DMPNE had just won a landslide victo- in retrospect, the pardon was justified. ry in early elections, with a 63-seat majority. Crvenkovski’s predecessor President Bo- Even though the proceedings against ris Trajkovski also used his right to pardon in Zaev were halted by Crvenkoski’s interven- 2003 when he absolved the former interior tion, they were still active in 2011 when the minister, Dosta Dimovska, of accountabili- Supreme Court ruled nothing illegal had tak- ty. These two presidential pardons were the en place. But the ‘pardoned criminal’ label last in which we can say that, though the stuck, and gained momentum after the State decisions were morally questionable, they were legally correct. Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police | 45

Crvenkovski saved Zaev from charges related to the construction of the Global shopping centre in Strumica | Photo: BIRN

PROCEDURAL RULES AND THE GENEVA CONVENTION GO OUT OF THE WINDOW

In order to stop the ‘Hague cases’ from part in the clashes, apart from individuals going ahead, and so as to establish a co- who would be indicted for war crimes by the alition government in 2011, the government International Criminal Tribunal for the former deployed the amnesty law creatively. Politi- Yugoslavia in the Hague. cal considerations took precedence over the Five cases were sent to the ICTY, four of rules. which were against members of the NLA, one The amnesty referred to war crimes against the interior minister at the time, and that occurred during the 2001 insurgen- a police chief killing of civilians in an eth- cy, when the armed ethnic Albanian militia nic-Albanian village near Skopje. The Hague National Liberation Army (Ushtria Clirimtare court retained only the latter, and returned Kombetare) clashed with the Macedonian the other four to be handled by the domes- police and army. After the Ohrid Framework tic courts. They concerned the torture of Agreement was signed in August 2001, Par- construction workers, the disappearance liament passed an amnesty law providing of civilians in an ethnic Macedonian village that nobody would be charged for taking controlled by the NLA, the cutting off of the 46 | Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police

water supply in the city of Kumanevo after to be interpreted. the NLA seized control of its reservoirs, and However, the request for authentic in- the NLA leadership. terpretation was made by DUI members of Given that the NLA transformed later in parliament - which raised the question of 2001 into a political party called the Demo- whether they had the right to do so, since cratic Union for Integration (DUI), there was they were not in charge of implementing the an urgent need for a parliamentary decision law. to close these cases. Consequently, DUI MPs Amnesty for war crimes is forbidden under called for an ‘authentic’ interpretation of the the Geneva Convention: states are obliged 2011 amnesty law in order to clarify that it to investigate and prosecute them.This is covered war crimes. because a failure to act upon war crimes un- ‘Authentic’ interpretations exist so that dermines the pursuit of the ultimate aim of Parliament can clear up something unclear an amnesty – reconciliation and cohesion. or ambiguous in the implementation of a new In this instance, the four cases had al- law, or when institutions interpret it differ- ready been opened before they were sent to ently and proceed differently, which would The Hague. They were then returned to North endanger the principle of equality before the Macedonia to be dealt with. law. Article 175 in the Rules of Procedure of “Just because the Hague returned the the Parliament prescribes how this is done. cases, doesn’t mean that the crimes did It says the request can be submitted by not exist. The Hague merely assessed that members of Parliament, the government, the state is capable enough to process this courts, prosecutions and mayors if the “need cases,” says Kalajdziev. for authentic interpretations be related to The context was clear: after the elections applying the law in their everyday work”. In in June 2011, VMRO-DPMNE won 56 parlia- brief, if someone implementing a law is un- ment seats (five short of a majority) and clear on how to proceed, they can ask for it DUI won 15, so they had to agree to form a

The appointment of Sadula Duraki (second from left) as a minister in Zaev’s government caused a stir | Photo: The Government of the Republic of North Macedonia Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police | 47

new government together. An authentic in- “You thought of a good excuse, I am so terpretation of the Hague cases, in which naive…” she replies. suspects were accepted members of the DUI SDSM then left the parliamentary session leadership, was the condition for coalition. and opposed the amnesty. In some of the wiretaps published by “The public had the opportunity to hear SDSM in 2015, the VMRO-DMPNE leader Nikola in the recordings the hypocrisy and the true Gruevski and party members Zoran Stavrevs- creator of the authentic interpretation of ki, Gordana Jankulovska, Sasho Mijalkov and the Hague cases. As for re-examining this Silvana Boneva discuss the decision and ad- process, I have to say there is no such legal mit that it was made purely in order to en- option, because once an authentic interpre- able the coalition to be formed. tation has been delivered, it is in force as a “They should leave everything else and law and it enters the legal system, with all go there,”, Gruevski says in one of the re- the legal consequences that entails,” says cordings, after finding out that a large num- minister Renata Deskoska. ber of MPs found excuses not to be in the Most of those investigated in the Hague Parliament for the vote. cases are now officials in the government of “I made up an excuse that I have to be SDSM and DUI, including the vice-prime min- with Nora’s child, that I have to take care ister, Sadula Duraku (the Lipkovo dam case) of it,”, Stavrevski tells Jankulovska in anoth- and the foreign investment minister, Hisen er conversation. Dzemaili (the Mavrovo workers case).

THE POLITICAL EARTHQUAKE CAUSED BY IVANOV

Some of the 56 people covered by Presi- through Albania, Montenegro and Serbia in dent Ivanov’s pardons in April 2016 are now 2018, on the day when he was supposed to politically active. begin a two-year prison sentence. Ivanov’s decision caused controversy, The courts in both countries refused to prompting the so-called Colourful Revolution extradite them to North Macedonia, arguing and counter-protests by the pro-govern- that a presidential pardon cannot be re- ment initiative, GDOM. The attempted revival voked. of the pardons is especially contentious be- According to the former Constitutional cause some of those charged in SPP cases Court judge, Natasha Gaber Damjanovska, intend to seek justice in the European Court this decision is understandable, considering of Human Rights, if convicted at home. that the legality of the pardons is still not The argument is the same one used in clear. the Greek and Hungarian courts when they “Greece and Hungary cannot assess refused to extradite Nikola Gruevski, Goran which provisions are in force in a particular Grujevski and Nikola Boshkovski. Grujevski country, if the country in question hasn’t and Boshkovski were arrested in Thessalon- resolved the issue. They can’t allow them- iki, Greece in 2017, trying to board a plane selves to draw such a conclusion,“ she says. to Hungary under false identities in order Legal experts consulted by BIRN think the to escape detention and imprisonment in only way to clear up the issue is to declare North Macedonia. Gruevski fled to Budapest the decision illegal. Professor Svetomir Sh- 48 | Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police

The pardon decisions made by President Ivanov prompted the Colorful Revolution | Photo: BIRN

karic is one of the legal experts who have “judges close to SDSM have agreed that Ar- pointed to the chronology of the episode in ticle 11 exists”. support of this argument. “I raised the alarm that the intention of The law on pardons (including the infa- [the 2016 ruling] was not to revive Article mous Article 11, which allows the President 11… The decision of the court should never to issue pardons even while proceedings are have been passed. The argument that the still active) was adopted in 1993. In 2009 it constitutional powers of the President were was amended by VMRO-DMPNE, who had a limited did not hold water, since the Consti- parliamentary majority at the time, in an at- tution is clear that pardons are regulated by tempt to prevent it being used. Two crucial law. If that was not the case, the initial law new provisions abolished Article 11 and par- from 1993 should have been repealed and dons for criminality, such as paedophilia or the President should have been given un- electoral manipulation, were forbidden. limited rights,“ explains the former constitu- Seven years later, in 2016, the Constitu- tional judge. tional Court quashed these changes to the Shkaric says that the confusion means law. In doing so the court abolished a law an illegal decision has begun to have legal that itself abolished an article from the law, consequences. making it unclear whether Article 11 now ap- “You can’t have an authentic interpreta- plied. This was not discussed in the Explan- tion of a ‘dead’ law. But they realised that atory Note. Gaber-Damjanovska, who was a too late. Parliament should have reacted member of the court at the time, mentioned immediately with a decision that the pardon it in the concurring opinion, expressing her was null and void, but clearly that was po- doubt that the intention was to revive the litically difficult at the time. That is why it is Article. difficult to act now,“he says. Her opinion has recently been reinter- He adds that Ivanov’s decision will have preted, as she herself says, in a completely an impact if SPP cases reach Strasbourg, different way. VMRO-DPMNE MP Antonio Milo- because pardons are normally very rare and shoski claimed at a press conference that the ECtHR consequently takes them serious- Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police | 49

ly. Gaber-Damjanovska thinks progress can Professor Gordana Siljanovska-Davko- be made if Ivanov himself accepts respon- va, later a candidate to succeed Ivanov in sibility. his party, disputed this interpretation. She “Ivanov should have taken responsibili- agued the Constitutional Court, unlike Par- ty... At the time, it was difficult for Parliament liament, was not a legislature. Accordingly,- or the Constitutional Court to take control of constitutional judges can repeal laws, arti- the issue, but now it must be done.”. cles and other decisions passed by a state When Ivanov decided to deploy Article 11, body, but they cannot bring back something he said that his goal was to contribute to that was repealed, as that would effectively national reconciliation. create new law. “Metaphorically speaking, [I wanted] to The question of whether Ivanov had over- cut the knot, in accordance with all my con- stepped his competencies was never raised stitutional and legal powers, by halting all by any institutions. The fact that the state proceedings against opposition politicians now officially considers his 56 pardons to be and their associates or supporters,” Ivanov invalid is not necessarily relevant in interna- said in his explanation, adding that he was tional courts. convinced that most of the politicians were Justice minister Renata Deskoska says innocent of the charges against them, and that the extradition requests for Grujevs- the charges were in any case put up by for- ki, Boshkovski and Gruevski stated that the eign powers. pardons were null and void. But the courts in But political tensions did not ease as a Hungary and Greece disagreed, since no law result. Indeed, they intensified. Opponents had been passed to nullify them. This en- of his decision saw Ivanov’s move not as an couraged the other defendants to seek jus- attempt at reconciliation, but as an effort to tice abroad if they were convicted at home. absolve those who had abused their power from responsibility.

GUILTY UNTIL PROVEN INNOCENT

In December 2018, a law was adopted Court had to rule on the individual circum- that experts described as the strangest am- stances of each defendant. nesty in the legal history of North Macedo- “As a rule, an amnesty is one event, and nia. Unlike the usual practice, in which Par- everyone included in this event can be grant- liament rules that an unspecified group of ed the amnesty. Dividing it into violent and people who have committed a crime will not non-violent participants could be problem- be prosecuted for it and it enters into force atic. It was an interconnected event… Those ex officio, this amnesty was granted after a who were violent, couldn’t have committed request from the accused. the crime without the help of the others. It is The law concerned the ’April 27’ incident also unusual for the Court to decide who has in which a mob stormed Parliament and in- and does not have the right to amnesty,”- jured several opposition MPs who were trying says Professor Kalajdziev. to form a majority. It exempts those who par- Of the 34 people initially charged, 15 are ticipated in the attack, but neither organized still waiting for a verdict and 14 have been it or used violence, from prosecution. The convicted. 50 | Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police

The unusual amnesty saved some of thos eaccused of violence on April 27 2017| Photo: Robert Atanasovski

The right to presumption of innocence, the constitutional changes needed for the guaranteed by Article 13 from the Constitu- Prespa Agreement to be implemented and to tion, has been brought into question, since change the name of the country to Republic only a guilty person can be granted amnesty. of North Macedonia. The political motives behind this law “The amnesty in 2018 was proposed as a are clear. The declared goal was to achieve process of reconciliation, led in the Parlia- “reconciliation by overcoming division in ment. Nonetheless, it is my opinion that the society” and to continue with reforms that process was not fully completed and that is would enable North Macedonia to apply to the reason why we still don’t have reconcili- join the EU. But 19 of those freed were VM- ation between the victims and the attackers RO-DMPNE MPs, and eight of them supported on April 27,” said Deskoska.

HOW FAR HAS RECONCILIATION BEEN ACHIEVED?

After a decade of efforts to achieve a “The climate of impunity has upset the very sense of unity by granting pardons and im- core of society. For some crimes there must be munity from prosecution, we have achieved accountability. If there is no equality even in the precisely the opposite. For Natasha accountability, then we do not have an organized Gaber-Damjanovska, this is no surprise. society,” she says, adding that better efforts to Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police | 51

fight corruption and abuses of the system “There is a high level of distrust in pol- would have benefited all citizens. iticians in general, no matter which side Deskoska says polarization is even great- they’re on,” he says. But like the other ex- er today because the previous ruling party perts we spoke to, he regards the current fed existing divisions. situation of conflicting legal decisions as Kalajdziev points out, with heavy irony, unsustainable. that the injustices have prompted a kind of reconciliation in the form of widespread distrust of politicians.

Injustice enhances distrust and divisions | Photo: BIRN 52 | Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police

СS6: DETENTION AS PUNISHMENT FOR COMMON PEOPLE Those at the top of the political pyramid remain untouchable

Author: Aleksandar Dimitrievski

The disregard of the principle of equality detention is a politically important player, and before the law is best illustrated by the way when they are an ordinary citizen. For the lat- pre-trial detention is applied. ter, pre-trial detention is almost routine, even Comparing how pre-trial detention or- at the cost of personal tragedy, while those on ders were used in the Mavrovo workers and the top of the political pyramid are almost un- Snake-eye cases reveals how differently in- touchable. stitutions behave when the target of pre-trial

THE CURIOUS CASE OF HYSNI XHEMAILI

May 15, 2008 was the peak of campaigning was Hysni Xhemaili, a candidate running for for the general election, which was to be held the DUI party. on June 1. The public was shocked and disap- VMRO-DPMNE easily won a majority in the pointed by the news that Greece had vetoed general election, but convention dictates that North Macedonia’s hopes of joining NATO. no Macedonian government can be formed It was at this moment that the VMRO-DMPNE without an ethnic Albanian coalition partner, justice minister, Mihajlo Manevski, announced since the group represents a quarter of the the start of the so-called Hague cases. These population. In the previous government VM- were the four investigations into crimes against RO-DMPNE had tried to bypass DUI and form a humanity committed by the National Liberation coalition with another minor ethnic Albanian Army (NLA) in 2001, during the Yugoslav con- party, but this led to a boycott of parliament flict. They were initially opened in 2001, then and other difficulties. This time they negotiat- referred to the International Criminal Tribunal ed with DUI. for the former Yugoslavia (ICTY), and subsequently sent back to North Macedonia in 2008. Taking someone into custody, and Four days after the announcement, informing the media in advance so the then State Public Prosecutor, Ljupcho they can set up their cameras, is being Shvrgovski, announced the indictment in one used to punish opponents and as a of the Mavrovo workers case. A large number demonstration of the fight against of people were suspected of kidnapping crime. One extreme case was the arrest and torturing workers from the Mavrovo of Ljube Boshkovski in 2011, and the construction company. Among the suspects most recent one was when Katica Janeva was taken into custody. Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police | 53

During the negotiations, the court The MoI continued to look for him until the scheduled the first hearing for the Mavrovo end of 2008, during which time six hearings case. Hysni Xhemaili was by now an MP. On were postponed in the Skopje Criminal Court. September 16, when the government had The minister, Gordana Jankulovska, refused to been formed, only two of the 23 defendants inform the court that the police were unable to appeared at the first hearing. It was the start of find him. one of the most interesting detention-related On January 9 2009, the Skopje court decided stories in the Macedonian judicial system. to terminate Xhemaili’s pre-trial detention. When a defendant does not appear in court After the prosecution agreed, he was allowed for a hearing, the court can continue the trial to defend himself from outside custody, in their absence, on condition that the Ministry with bail set at 50,000 euros in the form of a of the Interior informs the court that they have property guarantee. been unable to locate them. Experts immediately criticised the decision: In the Xhemaili case, after postponing the “What is the logic in exempting a fugitive from first hearing due to the defendants’ absence, custody?” the court issued a detention order in absentia The public prosecutor, Jovan Ilievski, for several of those charged, including brother-in-law of Sasho Mijalkov, the Chief of Xhemaili. The MoI started a search for them, the Secret Police, issued a statement that the but months later they had still not been found. prosecution had agreed to the bail because The hearings were repeatedly postponed it was the only way to secure Xhemaili’s because the police failed to inform the court attendance at the trial. But in reality it was they were still missing. the court that had taken the decision, not the Xhemaili failed to show up for work in prosecution. Parliament, but sent in regular notes excusing his absence.

THE CASE OF THE PAY-TOLL WORKERS

While the police were failing to locate “They took us out of the vans in front of the Xhemaili in the autumn of 2008, the Criminal Criminal Court, and started taking us towards Court in Skopje reached a verdict in the Snake- the building, when they suddenly stopped. Eye I case. This huge case against 72 pay- ‘Take them back’, someone from the special toll staff concluded in the sentencing of only police unit said. ‘The cameras are not here seven of the defendants, 61 probation orders yet.’” He was supposedly talking about police and four acquittals. The original charges of cameras, but somehow the recordings later organized crime were dropped and the final ended up in the media, Ljubomir Bundaleski, convictions were for misconduct in public one of the accused, told BIRN. office. The Snake-Eye trial is still ongoing after Unlike the Mavrovo case, when the police 13 years. During this time four of the accused failed to find the defendants or inform the have died. Another was denied the opportunity court they were still missing, most of the to stand trial despite her husband’s fragile defendants in the Snake-Eye case spent five health. He set himself on fire and died while months in jail and another seven under house she was in custody. arrest. Some were imprisoned for nearly a year. 54 | Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police

Total of 72 persons were accused of having stolen pay-toll money | Photo: BIRN

IMPORTANT AND LESS IMPORTANT PEOPLE

The Mavrovo and Snake-Eye trials are The court annulled Xhemaili’s detention completely different. But the contrast in the while he was de facto a fugitive. The Snake- way custody was ordered and enforced is Eye defendants, most of them just ordinary instructive. It reveals how the courts and workers, spent more than 370 days in custody, police proceed when defendants are politically even though they were suspended from well-connected, and how they act when they work (so they could not repeat the crime), are ordinary citizens. they obeyed the rules of house arrest (didn’t The provisions of the old and new Criminal flee), nor could they tamper with witnesses, Codes state that pre-trial detention is pre- since the MoI built its case using special scribed in three cases: investigative measures. The decision applied ÂÂthere is a risk the defendant will flee; to all the defendants, with no explanation of ÂÂthere is a danger they will reoffend; why it was applied across the board or why any ÂÂthere is a risk they will tamper with individual was, for example, considered at risk witnesses, evidence or the trial itself. of absconding.

ONE COURT, DOUBLE STANDARDS

Macedonia’s use of detention orders has “The ECHR found several violations of the been criticized by numerous international right to freedom in cases in which pre-trial institutions. The European Commission’s 2014 detention was ordered with no specified and Annual Progress Report quotes the European satisfactory justification”. Court of Human Rights: Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police | 55

In 2015, an Organization for Security and the suspects and the accused. This measure Co-operation in Europe-funded study by was approved in only 25% of the cases, or 5% Prof Gordana Buzharovska, Judge Slavica of the total. Andreevska and lawyer Aleksandar Tumanovski found that the Criminal Court in Skopje orders At present the only legal satisfaction pre-trial detention in 93% of cases where the the accused in this case have comes prosecution requests it. from Strasbourg. The European Court In the same year, the Special Prosecution reached a verdict in 2010 that national Office was established to investigate illegal courts were wrong to order collective wiretapping by the secret services. In Febru- pre-trial detention. ary 2016, it opened its first case and asked for pre-trial detention for eight officials of the ruling party, or people close to them. Four of them were unavailable at the time, Over the same period of time, the Basic and the court exempted the other four from Public Prosecution for prosecuting organized detention the same night. They included the crime requested pre-trial detention for an av- ex-transport minister Mile Janakieski. Shortly erage of 40% of their suspects or accused, after 3am the president of the court, Vladimir and the Court approved it in 95% of cases. Panchevski, emerged from the court building. Yet another example of the flexibility of the Asked by reporters what he was doing there in Court where SPO cases were concerned was the early hours of the morning, he replied he the Trust case against the businessman Sead was overloaded with work. Kochan. When the SPO requested pre-trial Four days later the remaining defendants detention, the Preliminary Proceedings Judge attended court and were also exempted. refused it. As the later decision of the Judicial The All for a Fair Trial coalition believes this Panel to issue a detention order showed, the example is typical. first instance judge thought there was a flight By the end of 2018, the SPO, which risk, though a small one. But the law does not prosecuted mainly senior officials, had allow courts to assess the severity of a flight requested pre-trial detention for only 20% of risk: it either exists, or does not.

“SOME LOST A HUSBAND, SOME LOST A PARENT”

At the time his pre-trial detention order at the trial; in 2019, he became a government was issued, Sead Kochan had already left minister. the country. The Supreme Court cancelled The proceedings in the Hague case dragged his detention order while he was de facto along until 2011, when Parliament adopted the a fugitive from justice. Kochan eventually amnesty law to free the suspects. returned and was sentenced and jailed. He is Ljubomir Bundaleski and most of his col- one of only two people charged by the SPO who leagues still work at the toll booths. In February are behind bars. 2020, the Criminal Court of Skopje reached a Hysen Xhemaili, who escaped detention, verdict for the third time. All the accused were was never convicted, nor cleared by a court. He freed on probation for official misconduct, de- continued to work at Parliament and showed up spite the fact that the article used to convict 56 | Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police

Numerous criticisms arrived from Brussels about the manner in which pre-trial detention is used.

them does not permit probation to be used as “Some lost a husband, some lost a parent. a punishment. The second charge by the pros- I wasted almost a quarter of my life on this ecution, criminal association, was dismissed case, but I did not lose my pride. I’ll fight for as due to statutory limitation. They suspect that long as I’m alive,” says Bundalevski. this particular sentence was handed down in The Snake-Eye case now goes back to the order to stop them seeking damages for the Appellate Court, and it may be years before a 370 days they spent in pre-trial custody. higher court reaches a verdict. Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police | 57 58 | Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police

THE STRUCTURE AND ORGANIZATION OF THE REPUBLIC OF NORTH MACEDONIA’S JUDICIAL SYSTEM Аuthor: Denis Preshova new courts which are part of the so-called administrative judiciary. The Administrative Court JUDICIARY was founded in 2006,8 followed by the Higher 9 Thirty-four courts make up the judicial Administrative Court in 2010. These courts branch of the Republic of North Macedonia have exclusive jurisdiction in administrative (RNM). The Law on Courts4 stipulates five types law disputes. of court: basic courts, courts of appeal, the In fact, there are now two parallel hierar- Administrative Court, the Higher Administrative chies. The first is comprised of basic courts, Court and the Supreme Court. courts of appeal and the Supreme Court, all Article 101 of the Constitution of RNM5 of which are broadly competent in criminal makes the Supreme Court the highest court in law matters and civil law disputes. The sec- the Republic, and it ensures all courts apply the ond hierarchy is made up of the Administra- law in a uniform way. There are four courts of tive Court and the Higher Administrative Court, appeal, based in Skopje, Shtip, Bitola and Gos- which both act in administrative disputes. The tivar, which each have jurisdiction over several only point of contact between these two hi- first-instance (basic) courts. Article 28 of the erarchies within the judiciary is the Supreme Law on Courts established 27 of these basic Court, which can decide on legal remedies in courts, which each have jurisdiction over one administrative disputes, but cannot take mer- 10 or more municipalities. Sixteen of them have it-based decisions in this area. expanded jurusdiction, which means they hear The Judicial Council holds a constitutionally several types of criminal and civil law cases.6 -defined mandate to guarantee the judiciary’s The 1991 Constitution of the Republic of independence and autonomy. This body Macedonia (as it was called at that time) es- was first anticipated under constitutional tablished the judiciary as a unitary organiza- amendments adopted in 2005, and was tion, which implied a single hierarchy com- founded under provisions in the Law on the 11 prised of basic courts, courts of appeal and the Judicial Council of RM, adopted in 2006. Supreme Court as the highest-instance court. According to the provisions of the new Law on However, this principle was abandoned with 8 Article 25 from the Law on Courts, see footnote no.1 the adoption of Constitutional Amendment XX 9 Article 4 which added Article 15-a, Law on 7 in 2005. This change allowed the creation of Amending the Law on Courts, “Official Gazette of RM” no.150/2010

4 Law on Courts, “Official Gazette of RM” no. 58/2006, 10 Article 4 from the Law on Courts, “Official Gazette of 62/2006, 35/2008, 150/2010, 83/2018 and 198/2018 RM” no.62/06 and 150/10. Article 15 from the new and “Official Gazette of RNM” no. 96/2019 Law on Administrative Disputes, “Official Gazette of RNM” no 96/2019, which will enter into effect in 5 Constitution of RNM, “Official Gazette of RM” May 2020, stipulates that the Supreme Court of RNM no.52/1991 shall decide only upon issues pertaining to conflict 6 Articles 30 to 32 from the Law on Courts see footnote of competences between administrative courts and no.1 other courts. 7 Article 98 and amendment XX from the Constitution 11 Law on the Judicial Council of the Republic of of RNM, see footnote no.2 Macedonia, “Official Gazette of RM” no.60/2006 Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police | 59

the Judicial Council from 2019,12 the Council is The Minister of Justice comprised of 15 members, as follows: The President of the Administrative Court The President of the Supreme Court and Presidents of all four courts of appeal the Minister of Justice, who serve as ex officio Two presidents of basic courts according members, without voting rights; to a rota established by the Law on Courts, eight members selected from the ranks of with a two-year term of office. One president judges in direct elections held at courts; should come from a basic court with expanded five members appointed by the Parliament jurisdiction of RNM from the ranks of university law The Director of the Academy of Judges and professors, attorneys at law, former judges Public Prosecutors. to the Constitutional Court of the Republic Representatives of the Ministry of Finance of North Macedonia, international judges also participate in the JBC’s work, but they do and other distinguished law professionals. not have decision-making and voting rights. These are nominated by the President and the parliamentary committee for elections and PUBLIC PROSECUTION OF THE appointments. REPUBLIC OF NORTH MACEDONIA In its capacity as an independent and autonomous body, the Judicial Council takes The public prosecution service, pursuant decisions on all aspects of judges’ careers to Article 106 of the Constitution, is defined (appointments, dismissals, promotions, as a single and autonomous body tasked disciplinary procedures, etc.), as well as other with prosecuting criminal offences and issues pertaining to administration of the other acts punishable by law. The office judiciary. In determining the Judicial Council’s of public prosecution is performed by the composition, due consideration should be Chief Prosecutor of the Republic of North given to the principle for equal and adequate Macedonia and public prosecutors. As well as representation of ethnic communities. This is the Public Prosecution Office, the prosecution achieved by selecting four council members organization includes basic and higher who must be from minority communities, prosecution offices and the Prosecution Office three of whom are judges and one of whom for Organized Crime and Corruption. is a member proposed by the President. At The Public Prosecution Office of RNM the same time, three of the Council members answers to the Supreme Court. Four higher nominated by the parliamentary committee on prosecution offices answer to respective elections and appointments are selected by courts of appeal in Skopje, Bitola, Shtip and Parliament by means of a majority vote among Gostivar. MPs. This must include a majority of MPs who The new Law on the Public Prosecution are members of minority communities in the Office means that the Prosecution Office for Republic of North Macedonia. Organized Crime and Corruption will cover all The Judicial Budget Council (JBC) was of RNM and will act before the Basic Criminal established to secure the judiciary’s financial Court in Skopje. A specialist department will independence. Under the Law on the Judiciary prosecute prison officers and police. Twenty- Budget,13 the JBC is comprised of a president two basic prosecution offices will answer to and ten members. The JBC President is also their local basic court. the President of the Judicial Council, while The Council of Public Prosecutors the President of the Supreme Court is his/her (CPP)14 is defined as an independent body deputy. that guarantees the autonomy of public Other members of the Judicial Budget prosecutors. This council is comprised of 11 Council include: members:

12 Law on the Judicial Council of RNM, “Official Gazette 14 Law on the Council of Public Prosecutors of the of RNM” no.102/2019 from 22.5.2019 Republic of Macedonia, “Official Gazette of RM” 13 Law on Judiciary Budget, “Official Gazette of RM” no.150/2007 and 100/2011 and “Official Gazette of no.60/2003, 37/2006, 103/2008 and 145/2010 RNM” no.42/2020 60 | Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police

The Chief Prosecutor of the RNM in an ex Charter of Fundamental Rights.15 For the first officio capacity time, Chapter 23’s explanatory notes for the six members selected from the ranks of Republic of North Macedonia and Albania public prosecutors feature references to relevant European Court four members appointed by the Parliament of Justice case law. of RNM from the ranks of university law Standards established in Council of Europe professors, attorneys at law, former judges documents (and those of its advisory bodies) to the Constitutional Court of the Republic of primarily refer to acts that do not have a formal North Macedonia, international judges and and legally binding effect (so-called ‘soft law’). other distinguished law professionals. These documents include: In order to ensure minorities are sufficiently Articles 6 and 13 of the European Convention represented, one of the public prosecutors on Human Rights; and two of the Parliament-appointed members Committee of Ministers, Recommendation must be from minority communities. CM/Rec(2010)12 on judges: independence, The CPP is the only body that decides on efficiency and responsibilities;16 issues related to public prosecutors’ careers Venice Commission, Report on the and other matters related to the administra- Independence of the Judicial System (2010) tion of the public prosecution service. Except – Part I: The Independence of Judges, CDL- for the Chief Prosecutor, who is proposed by AD(2010)004,17 and Part II: The Prosecution the government and selected by Parliament, it Service, CDL-AD(2010)040;18 selects all public prosecutors . Venice Commission, Rule of Law Checklist, CDL-AD(2016)007;19 European Guidelines on Ethics and INTERNATIONAL (EUROPEAN) Conduct for Public Prosecutors (the Budapest STANDARDS FOR THE JUSTICE Guidelines) adopted by the Conference of 20 SYSTEM Prosecutors General of Europe on 31.5.2005; Consultative Council of European Judges, Under Chapter 23 of the EU Enlargement Opinion No.1 (2001) on standards concerning Policy, the European Commission established the independence of the judiciary and the EU standards for the justice system (the irremovability of judges;21 judiciary and public prosecution). They fall into Consultative Council of European five categories: independence, impartiality, Prosecutors, Opinion No.9 (2014) on European professionalism, efficiency and quality of norms and principles concerning prosecutors;22 justice. Given that EU law, with the exception Council of Europe, Recommendation of general provisions under treaties that serve Rec(2000)19 on the role of public prosecution as the primary source of law, does not provide in the criminal justice system;23 a clear and detailed definition of standards 15 Macedonian translation of cited provisions is for the judiciary, most of these standards are available at: http://www.sep.gov.mk/data/file/ Publikacii/Dogovor%20od%20Lisabon(1).pdf of an external character. In other words, the 16 Available at: https://rm.coe.int/16807096c1 European Commission more often refers to 17 Available at: https://www.venice.coe.int/webforms/ documents by the Council of Europe and other documents/?pdf=CDL-AD(2010)004-e organizations than EU legal acts. 18 Available at: https://www.venice.coe.int/webforms/ documents/?pdf=CDL-AD(2010)040-e Relevant provisions from EU primary law 19 Available at: https://www.venice.coe.int/webforms/ referred to by the European Commission documents/default.aspx?pdffile=CDL-AD(2016)007-e concern Articles 2, 7 and 19 of the Treaty on 20 Available at: https://rm.coe.int/conference-of- prosecutors-general-of-europe-6th-session- the European Union, Article 49 of the Treaty organised-by-t/16807204b5 on the Functioning of the European Union, 21 Available at: https://rm.coe.int/1680747830 and Articles 47 to 50 of the European Union 22 Available at: https://rm.coe.int/168074738b 23 Available at: https://rm.coe.int/16804be55a Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police | 61

European Charter on the Statute for Judges, 1998;24 Committee of Ministers, Recommendation R(94) 12 on the independence, efficiency and role of judges, 1994;25 Council of Europe, Recommendation No. R (86) concerning measures to prevent and reduce excessive workload in the courts;26 Compilation of the Venice Commission’s opinions and recommendations concerning courts and judges, CDL-PI(2019)008;27 Compilation of the Venice Commission’s opinions and recommendations concerning prosecutors, CDL-PI(2018)001.28 Furthermore, reference is made to reports of the European Network of Councils for the Judiciary, as follows: European Network of Councils for the Judiciary, Development of Minimum Standards for the Judiciary I + II, Reports 2010-2011 and 2011-2012.29 Finally, reference is made to a United Nations document concerning the conduct of judges: Bangalore Principles of Judicial Council (the Bangalore Principles) adopted by the United Nations Commission on Human Rights on April 23, 2003.30

24 Available at: https://rm.coe.int/16807473ef 25 Available at: https://search.coe.int/cm/Pages/ result_details.aspx?ObjectID=09000016804c84e2 26 Available at: https://rm.coe.int/16804f7b86 27 Available at: http://www.venice.coe.int/webforms/ documents/?pdf=CDL-PI%282015%29001-e 28 Available at: http://www.venice.coe.int/webforms/ documents/?pdf=CDL-PI%282015%29009-e 29 Available at: http://www.csm1909.ro/csm/ linkuri/15_06_2011__41805_ro.pdf and http:// birosag.hu/sites/default/files/allomanyok/ nemzetkozi/english/final_report_standards_ii_2011- 2012.pdf 30 Available at: https://www.unodc.org/res/ji/import/ international_standards/bangalore_principles/ bangaloreprinciples.pdf 62 | Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police

JUDICIAL INDEPENDENCE UNDER SIEGE

Аuthor: Denis Preshova

1. PAST JUDICIAL REFORMS: FROM SUCCESS STORY TO JUDICIAL CAPTURE

An independent and impartial judiciary is one People’s Courts adopted by ASNOM’s Presidium of the most important pillars of any functional on March 31, 1945. Until the Constitution of liberal democracy: it is essential to the rule of SFRY and SRM were adopted in 1974, PRM (i.e. law. Because of this, and given that Article 2 of SRM) had relatively little influence on judicial the Treaty on European Union31 stipulates the organization and functioning, because these rule of law as one of the fundamental values issues were regulated at central (federal) level. on which the Union is founded, the EU pays Even after the respective constitutions were special attention to it, both as part of the EU adopted in 1974, the federal republics were accession process and (recently) in EU member granted partial authority in organizing and states. regulating judicial matters.33 The 1991 constitution of the Republic of Although the foundations were laid in North Macedonia enshrines a straightforward 1991 when Macedonia became independent commitment and path to establishing a liberal and acquired its first constitution, crucial democratic system. It integrates the rule of legislative reforms began after adoption law and the principle of power-sharing as of the Law on Courts in 1995, which came fundamental values in the constitutional into full effect in July 1996.34 This law, which order.32 On the other hand, the ongoing was implemented less than a month after emphasis on North Macedonia’s integration the provisions came into effect in June, into Euro-Atlantic structures as the top established how the judicial system should strategic foreign policy priority relies on the operate, as well as the principles on which it existence of an independent and impartial was founded, including the election of judges judiciary. at newly-formed basic courts and courts of Establishing, organizing and regulating appeal, as well as the number of judges at the a judicial system are areas in which North Supreme Court.35 This procedure finally put Macedonia lacks significant experience. The into effect the constitutional provision that origins of the judicial system in the country - guarantees permanent tenure for judges. It or more specifically in the People’s Republic did not apply to judges appointed prior to their of Macedonia (PRM) - can be found in the (re)election, except for the president of the Proclamation on the Establishment of Regular Supreme Court and a number of judges there, 33 For more on development of the judiciary in 31 Article 2 of the Treaty on European Union, Macedonia, see in: Kambovski, V., Judicial Law, “2nd consolidated version, available in the Macedonian August S” Shtip, 2010, pp. 164-169. language at: http://www.sep.gov.mk/data/file/ 34 Law on Courts, “Official Gazette of RM” no. 36/1995 Publikacii/Dogovor%20od%20Lisabon(1).pdf from 27.7.1995 32 Article 8, paragraph 1, items 3 and 4 from the 35 Article 112 and 117 from the Law on Courts adopted Constitution of RNM in 1995 Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police | 63

all of whom kept their posts.36 In the period judges.41 The usual justification for the purge after adoption of the Law on Courts, except was that it would liberate the judiciary from the for the Law on the Republic’s Judicial Council negative influence of the previous authorities, adopted in 1992,37 all relevant laws pertaining put it on solid foundations to improve efficiency, to the judiciary system were adopted, thereby and deliver results that could be measured revoking the laws adopted by SRM and SFRY against objective criteria. The gravity of these that had previously been in effect. By the mid- developments was not immediately recognized 1990s the first steps had been taken to create - not even by the European Commission in its an independent and impartial judiciary, and annual progress reports. Not until the political in ensuring constitutional guarantees that it situation escalated, and the so-called ‘bombs’ would ensure the principle of the separation emerged (illegally wiretapped conversations of powers. Previously the judiciary were that contained serious evidence of the abuse of subordinate, reflecting the unified principle of power, including by the judiciary) did the extent government. This period was the first stage of of the problem become apparent. Between reforms in the contemporary judicial system in 2009 and 2013 the Commission stopped North Macedonia and lasted until 2005, until a short of identifying problems or instances of major package of constitutional amendments political interference, instead noting systemic was adopted. shortcomings.42 Indeed, in its 2014 report, it This series of constitutional amendments reiterated: “Many of the overarching problems was adopted after North Macedonia became faced by all candidate countries have been a candidate for EU membership in 2005,38 tackled, including the elimination of the followed by the new Law on Courts39 and court backlog, establishment of the Academy the Law on the Judicial Council40 in 2006, of Judges and Public Prosecutors, formal and a series of other laws aimed at aligning independence of the judicial governance body the national legal framework with European (Judicial Council)…”43 These generally positive standards. In fact, RNM was the first state in points overlooked concerns about selective the region to undertake such major judicial justice and possible political influence in reforms - even before Croatia, which began individual court cases.44 Influenced by the somewhat later. These reforms aimed to first report of the senior experts’ group, led by ensure a solid basis for the decision to Reinhard Priebe in 2015, in its 2015 progress open accession negotiations with the EU. report the Commission for the first time Nevertheless, the change of government in 2006, and Greece’s veto of the country’s NATO 41 In the period 2007-2015, 44 from the total of 63 disciplinary procedures for judges have been membership at the Bucharest Summit in 2008 completed with dismissal decisions. For example, and of the opening of accession negotiations see: Venice Commission, Opinion on the Laws on the Disciplinary Liability and Evaluation of Judges with the EU in 2009, marked the start of a total of the Former Yugoslav Republic of Macedonia, CDL- capture of the judiciary through various forms AD(2015)042, pp. 6-7; The former Yugoslav Republic of of political influence and pressure. This period Macedonia: Recommendations of the Senior Experts’ Group on systemic Rule of Law issues relating to was characterized by the so-called “purge” of the communications interception revealed in Spring uncooperative judges, and the appointment 2015, Brussels, 8.6.2015 (2015 Priebe Report), pg. 9. The report is available at: https://ec.europa. or promotion of politically malleable and loyal eu/neighbourhood-enlargement/sites/near/ files/news_corner/news/news-files/20150619_ 36 Article 99 from the Constitution of RNM recommendations_of_the_senior_experts_group.pdf 37 Law on the Republic’s Judicial Council, “Official 42 EC’s Progress Reports for the Republic of Macedonia Gazette of RM” no. 80/1992 from 22.12.1992 up to the year 2017 in the Macedonian language are 38 Amendments XX-XXX to the Constitution of RNM from available at: https://www.sobranie.mk/dokumenti- 7.12.2005 rm-eu-cbb3490c-fe7d-4750-82f4-67c619c46a6a. 39 Law on Courts, “Official Gazette of the Republic of nspx Macedonia” no. 58/2006 from 11.5.2006 43 2014 Progress Report for the Republic of Macedonia, 40 Law on the Judicial Council of the Republic of pg. 10-11 Macedonia, “Official Gazette of RM” no. 60/2006 from 44 2014 Progress Report for the Republic of Macedonia, 15.5.2006 pg. 11 64 | Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police

identified backsliding in judicial reform, and RNM in 2019.50 During this period, legal reforms direct political influence.45 After the wiretaps to the judiciary were accompanied by positive were revealed, the Commission’s 2016 progress opinions and reports by the European and report included a straightforward assessment Venice Commissions.51 Although it is still early of state and institutional capture, including to evaluate the success of the third round of the judiciary, confirming Priebe’s findings.46 reforms, judging from the failure to identify Judicial reform stalled because of pressure critical problems in the judiciary and adequate from political elites, especially the executive responses to them, progress remains doubtful. branch. There was also a failure to change the The problem is not the existence of an mentality of judges and the legal culture of adequate legal and constitutional framework; the state, in favor of a focus on the legal and the challenge is to implement it.52 institutional framework. The judiciary failed to resist this pressure because of a lack of will to take difficult decisions, a rigidly formalistic 2. ARE THE MODELS OF JUDICIAL and textual approach to interpreting the law, INDEPENDENCE AND SELF- and unchallenged perceptions about the role GOVERNANCE A SOLUTION, OR 47 of judges. ANOTHER PROBLEM? The most recent stage of judicial reform in North Macedonia began with the adoption of The ex-communist states continue to the Strategy on Justice System Reforms 2017- face serious challenges to the rule of law. 2022. Its overall goal is to free up the judiciary, Consequently, the European Commission but not by simply moving to a new form of adopted a new approach to enlargement “capture” - which Priebe’s report warned about and accession negotiations, with a special in 2017.48 In fact, the second Priebe Report emphasis on chapters 23 and 24, which relate warns that a small number of judges with to the rule of law.53 This means that these two significant influence and strong ties to political chapters are the first to be tackled at the start elites are still in powerful positions that allow of accession negotiations, and the last to be them to endanger the independence of the closed. Yet judging by the state of judicial judiciary and of individual judges. A series of reform in some of these EU member states and changes to the law were made in the last two the failure of the negotiations to secure crucial years, including major changes to the Law on Courts from 201649 (adopted in 2019) and a 50 Law on the Judicial Council of RNM, “Official Gazette completely new Law on the Judicial Council of of RNM” no. 102/2019 from 22.05.2019 51 Venice Commission, North Macedonia, Opinion on the Draft Law on the Judicial Council, CDL-AD(2019)008, 18 March 2019; Venice Commission, The Former 45 Progress Report for the Republic of Macedonia, pg. 5 Yugoslav Republic of Macedonia, Opinion on the Draft and pg. 12 Law Amending the Law on Courts, CDL-AD(2018)033, 17 December 2018; European Commission, Progress 46 2015 Priebe Report, paragraph no. 11 Report on North Macedonia 2019, pp. 15-17, 47 For more information on challenges relating to available in English language at: https://ec.europa. the legal and judicial culture in the countries from eu/neighbourhood-enlargement/sites/near/ former Yugoslavia, see: Zobec, J. and Cernic, JR., files/20190529-north-macedonia-report.pdf “The Remains of the Authoritarian Mentality within 52 For example, see Venice Commission, North the Slovene Judiciary”, in Central European Judges Macedonia, Opinion on the Draft Law on the Judicial under the European Influence: The Transformative Council, CDL-AD(2019)008, 18 March 2019, pg. 14; Power of the EU Revisited, M. Bobek (ed.), Bloomsbury Venice Commission, The Former Yugoslav Republic Publishing, 2015, pg. 137; and in: Uzelac, A., “Survival of Macedonia, Opinion on the Law Amending the Law of the Third Legal Tradition?”, 49 Supreme Court Law on the Judicial Council and on the Law Amending the Review, 2010, pg. 377. Law on Courts, CDL-AD(2018)022, 22 October 2018, 48 The former Yugoslav Republic of Macedonia: pg. 4; and 2017 Priebe Report, paragraph no. 18, pg. Assessment and recommendations of the Senior 2. Experts’ Group on systemic Rule of Law issues 2017, 53 Louwerse, L. and Kassoti, E., “Revisiting the Brussels, 14.9.2017, (2017 Priebe Report) pg. 4-5 European Commission’s Approach towards the Rule of 49 Law on Amending the Law on Courts, “Official Gazette Law in Enlargement”, 11 Hague Journal on the Rule of of RNM” no. 96/2019 from 17.5.2019 Law 1, 2019. Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police | 65

reforms in the Western Balkans, the new powers, endowed with broad competences for approach has not brought about significant all questions concerning their status, as well change. The list of standards, assessment as the organization, functioning and image methodology, expected outcomes, etc., have of judicial institutions.”56 The EC promoted remained the same in spite of numerous this model by referring to these documents criticisms.54 The EC’s approach to the rule in Chapter 23 of its screening process, when of law, and especially to the judiciary and defining benchmarks, and by underlining the its independence, is more focused on role of judicial councils in its progress reports. institutional reforms and is characterized by It should be noted that this model of judicial one-sidedness and an absence of adequate self-governance does not yield the desired contextualization. The judiciary and judicial results everywhere when it comes to ensuring reforms are mainly assessed on the functioning judicial independence, as can be seen in the of two institutions: the judicial council, and the EC’s annual justice scoreboard for EU member body that trains judges. states.57 Indeed, EU member states that The EC insists on the existence of a have not established this model of judicial judicial council comprised of a majority of governance are regarded as having more members from the ranks of judges, and tasked judicial independence than those that have.58 with almost all issues pertaining to judicial In this context, state and judicial reforms in governance. The overall goal is to create North Macedonia in recent years are perceived a high level of self-governance through a through the prism of the EU integration process. strong judicial council that resists external Guided by its foreign policy priorities, in 2005 influences. Although a number of EU member RNM adopted constitutional amendments states lack a strong judicial council of this in judicial matters and introduced a new kind, the EC still insists on this model, which is institution, the Judicial Council, to replace the defined in Council of Europe documents.55 For Council in the previous Republic. By doing so, example, the Magna Carta of Judges adopted the Parliament no longer has a direct role in by the Consultative Council of European Judges judicial governance, except for the selection of stipulates that: “To ensure independence of five from a total of 15 members of the Judicial judges, each state shall create a council for Council. In his or her ex officio capacity, the the judiciary or another specific body, itself Minister of Justice is a member of this council, independent from legislative and executive but does not have the right to vote, which formally reduces the executive’s influence. On 54 Nicolaïdis, K. and Kleinfeld, R., “Rethinking the other hand, the new Law on the Judicial Europe’s ‘Rule of Law’ and Enlargement Agenda: Council from 2019 stipulates that the President The Fundamental Dilemma”, SIGMA Papers No. 49 (Paris: OECD Publishing 2012); Pech, L., “The EU as a of the Supreme Court is also a member of this Global Rule of Law Promoter: The Consistency and body in an ex officio capacity, without the right Effectiveness Challenges”, 14 Asia Europe Journal to vote.59 This follows the so-called European 2016; Kosar, D., “Perlis of Judicial Self-Government in Transitional Societies” (CUP 2016). model of a strong judicial council with broad 55 CCJE, Opinion No. 10 (2007) of the Consultative powers and majority members selected from Council of European Judges to the Attention of the the ranks of judges, making RNM the first Committee of Ministers of the Council of Europe on the Council for the Judiciary at the Service of Society, Doc CCJE (2007) OP No. 10, 23.11.2007, Venice Commission, European Commission for Democracy through Law (Venice Commission), Report on the 56 Consultative Council of European Judges, Magna Independence of the Judicial System, Part I: The Carta of Judges (Fundamental Principles), 17 Independence of Judges, Study No. 494 / 2008 November 2010, CCJE (2010)3, paragraph no. 13. Doc CDL-AD(2010)004, 16.3.2010, pp. 11-12; CCJE, 57 See EU Justice Scoreboard 2019, available at: Opinion No. 1 (2001) of the Consultative Council of https://ec.europa.eu/info/sites/info/files/justice_ European Judges for the Attention of the Committee scoreboard_2019_en.pdf of Ministers of the Council of Europe on Standards Concerning the Independence of the Judiciary and 58 EU Justice Scoreboard 2019, pp. 44-46 the Irremovability of Judges, Doc CCJE (2001) OP No.1, 59 Article 6, paragraph 2 from the Law on the Judicial 23.11.2001. Council of RNM adopted in 2019 66 | Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police

country in the region to adopt this model.60 The European standards at the level of the legal adoption of the Law on the Judicial Council and institutional framework. in 2006 officially launched this institution. Nevertheless, after 14 years, neither it nor the European model of judicial independence have 3. FORMAL AND INFORMAL WAYS TO yielded the desired results. The judiciary has INFLUENCE THE JUDICIARY failed to build resilience to negative influences. This situation should not come as a surprise, The consequences of this state of affairs in because instead of removing the judiciary from the judiciary cannot be reduced to academic or the influence of other branches of government, scholarly critiques that deal in abstractions. In it is now exposed to new forms of internal and order to understand how and why the judiciary external pressure on its independence.61 When has been ‘captured’, we have to pay attention a collectivist mentality prevails, based on to the specific forms its weakness takes - strict judicial hierarchy and clientelism where such as institutional design, but also legal judges are not prepared to act freely and hide culture and the mentality of judges. Here, I behind rigid legal formalism and hierarchy, they will examine these weaknesses, looking in are unlikely to fight for their independence.62 particular at what the wiretaps revealed about In other words, the way judges perceive the formal and informal pressures exerted on themselves and their institution is largely the judiciary. incompatible with a high degree of judicial self- governance. Reforms that fail to focus on the 3.1. The Judicial Council as the epicentre of root of the problems in legal culture have led political influences on the judiciary to contradictory and paradoxical conclusions. The creation of significant judicial self- We have an independent judiciary with governance and a strong judicial council dependent judges: an independent judiciary in opened up new ways to influence the judiciary. the formal sense, because it is managed by a Judicial governance is highly centralized, strong judicial council, but dependent judges which means the Judicial Council has become because they remain captive to the legal the place where key decisions are taken about culture and mentality that prevailed in the judges’ careers. Consequently, it is the target previous system.63 of different types of influence. Indeed formal Because of this, future judicial reforms influence from the politically powerful is often must be geared towards addressing actual much easier to detect. The Judicial Council problems. Full “liberation” of the judiciary was designed to protect judges from these will require more work and commitment external risks, but has failed to do so. A typical than simply the technical implementation of example of formal influence on the operation of the Judicial Council is the negative role 60 For more on creation and criticism of this model see played by former justice minister Mihajlo in: Preshova, D., Damjanovski, I. and Nechev, Z., “The Manevski. His influence was noted in a series Effectiveness of the ‘European Model’ of Judicial 64 Independence in the Western Balkans: Judicial of European and international reports and Councils as a Solution or a New Cause of Concern for was the subject of criticism, especially until Judicial Reforms”, CLEER Paper Series, 2017. the law was changed to remove the justice 61 Parau, C.E., “The Drive for Judicial Supremacy”, in A. Seibert-Fohr (ed.), Judicial Independence in minister’s right to vote in the Council. The Transition, Springer Science & Business Media, period of his tenure as Minister of Justice (MoJ) 2012, pg. 640; and Bobek, M. and Kosař, D., “Global Solutions, Local Damages: A Critical Study in Judicial Councils in Central and Eastern Europe”, German Law 64 For example, see the 2008 Progress Report for the Journal, 2014 15, pp. 1283–1288. Republic of Macedonia, pg. 14; 2010 Progress Report for the Republic of Macedonia, pg. 57; Group of 62 For more on problems related to the legal culture and States against Corruption (GRECO), Fourth Evaluation judge mentality in the context of the judiciary see Round: Corruption Prevention in Respect of Members in: Uzelac, A., paragraph no. 17 and in Zobec, J and of Parliament, Judges and Prosecutors—The Former Cernic, JR., paragraph no. 17. Yugoslav Republic of Macedonia, CoE Doc. Greco Eval 63 Uzelac, A., paragarpah no. 17. IV Rep (2013) 4E, pg. 24. Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police | 67

corresponds to the time when the Judicial ones that had a legal interest.67 Meanwhile, the Council was used to “confront” uncooperative recent appointments of non-judge members to and disloyal judges, but also to reward loyal the Judicial Council included one civil servant individuals with appointments to judicial and an expert associate from the Criminal positions. In this period, the MoJ often brought Court in Skopje. It is unclear how a person disciplinary and dismissal procedures against employed by the court as an expert associate, judges, exposing the judicial independence to who was unlikely to gain prominence as a legal direct attacks from the executive. Moreover, in professional and who throughout her legal 2013, according to the legal provisions in effect practice was the junior of judges at the Skopje at that time, people appointed as judges were court, would now be able to make disciplinary not graduates of the Academy of Judges and decisions, to appoint and dismiss judges, or Public Prosecutors, and did not necessarily evaluate their performance. New appointees hold any previous judicial experience. Posts will be in hoc to their political sponsors. in the Courts of Appeal and the Supreme Court Consequently, the reputational authority of the were directly recruited from the ranks of former Council is diminished, particularly given the court associates, attorneys-at-law, but also next council president will be selected from from among civil servants.65 non-judge members. Another form of political influence on the Judicial Council is through the selection of 3.2. The “notebook” as a a model of informal so-called non-judge members in the Judicial political influence Council by the Parliament of RNM. Because Formal political influences on the judiciary’s of the broad interpretation of the term independence are often easy to detect. More “prominent legal professional”, some members challenging, in terms of identifying and proving appointed to the Council were not, from an them, are informal channels of influence. The objective point of view, prominent members isolation of the judiciary, by creating significant of the legal profession, whether scholarly or self-governance, opened up a space in which in practice . The most glaring examples were informal influence and client relations between judges appointed from the Administrative the judiciary and political elites could thrive. Court or the Higher Administrative Court as The wiretaps revealed an example of this kind non-judge members in the Council. This of influence. The now-infamous notebook kept disrupted the balance between judge and by then interior minister Gordana Jankulovska non-judge members in the Council, and paved shows how politically compliant judges the way for judicial corporatism.66 In one case, were selected and promoted outside formal administrative courts were presented with institutions, especially in the period up until lawsuits to annul the decisions to appoint 2015.68 These conversations referred to a Lidija Kanachkovikj and Violeta Bogoevska, list of people who could be appointed by a but unfortunately the Higher Administrative confirmatory vote in the Judicial Council.69 The Court in the latter instance decided that these wiretaps also revealed agreements between decisions could only be petitioned by the coalition partners in the then government appointees themselves, as they are the only of VMRO-DPMNE and DUI discussing how to

67 Administrative Court, Decisions U-5 no. 1760/2018 and U-5 no. 1762/2018 from 18.10.2018; and Higher 65 Most notable example is appointment of Jovo Administrative Court, Decision UZ-2 no. 642/2018 Vangelovski in the Supreme Court of the Republic from 25.2.2019 of Macedonia in 2008. For more details, see Article 68 2015 Priebe Report, paragraph no. 11, pg. 9: “Many 6 from the Law on Amending the Law on Courts, judges believe that promotion within the ranks of the “Official Gazette of RM”, no. 35/2008 from 14.03.2008, judiciary is reserved for those whose decisions favour and Articles 17 and 45 from the Law on Amending the the political establishment. There must be no such Law on Courts, “Official Gazette of RM” no. 150/2010 thing as a ‘political case’ in the judicial process”. from 18.11.2010. 69 For more, see: http://vistinomer.mk/prislushuvani- 66 2017 Priebe Report, paragraph no. 18, pp. 6-7 razgovori-set-12-koruptsija-vo-sudstvoto/ 68 | Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police

distribute judicial posts, in particular court clearly indicated these risks and noted that a presidents, along ethnic lines.70 These informal small number of judges in powerful positions influences are just a few of numerous examples have a disproportionate influence on the that emerged in the wiretaps. judiciary as a whole.74 Moreover, the 2017 Signs of this type of informal arrangement Priebe Report added: “The control and misuse are also evident after the change in of the judicial system by a small number of government (i.e. between SDSM and DUI as judges in powerful positions to serve and coalition partners in the new government). promote political interests has not diminished For example, Prime Minister Zoran Zaev and in any significant respect. These judges have Blerim Bedzeti, a former justice minister and continued to bring pressure on their more incumbent mayor of Saraj, recently discussed junior colleagues through their control over the judiciary in phone conversations.71 These the systems of appointments, evaluation, exchanges make it clear that some decisions promotion, discipline and dismissal, which are agreed informally, not through institutions. have been used to reward the compliant and The panicked reactions of some members of punish those who do not conform.” the Judicial Council during the initial attempt The hierarchical nature of the judicial to vote on the appointment of judges in the system, its centralization and the dominance Skopje Court of Appeal were also revealing.72 of court presidents, create a favorable Specifically, members of the Council were environment for “judicial capture”. This is looking for instructions from prominent party pursued through “cooperation” with influential figures on how to vote, as they had a political judges and presidents of the more important interest in appointing certain judges to senior courts, especially those located in Skopje, posts. using their clientelistic and patronage links. These judges exert influence at several levels: 3.3. The role of judicial elites in judicial (in) the appointment and dismissal of judges, dependence disciplinary procedures and performance One of the major weaknesses of the evaluations, and the allocation of annual work European model of judicial independence schedules. The members of the Council often is that it underestimates internal threats, include ‘compliant’ judges who further their particularly judges’ self-interest. It is in own interests or those of the political elite. judges’ interests to keep their jobs and further But the Judicial Council alone is not solely to their interests, often through clientelistic blame. relationships with political elites.73 In the Wiretaps of conversations between second Priebe Report, the experts’ group Aleksandra Zafirovska (the former president of the Judicial Council), Filimena Manevska (a 70 For more, see: http://vistinomer.mk/prislushuvani-razgovori-set-2-dhoker-vo-sudstvo- former judge at the Skopje Court of Appeal) and to-nash-e-chovekot/ Jovo Vangelovski (the former president of the 71 For more, see: https://sdk.mk/index.php/makedoni- Supreme Court) clearly indicate the existence ja /zaev-barashe-od-mene-da-vlijaam-na-chlenovi- na-sudski-sovet-za-da-se-smeni-pretsedatel-na- of clientelistic relations, but also the influence sud-reche-gradonachalnikot-na-saraj-blerim-bed- and interests of judicial elites.75 heti/ и https://www.novamakedonija.com.mk/makedonija/politika/%D0%B7%D0%B0%D0%B5%D0%B2- %D1%81%D0%BE-%D0%B1%D0%B5%D1%9F%D0%B5 %D1%82%D0%B8-%D0%B7%D0%B1%D0%BE%D1%80 %D1%83%D0%B2%D0%B0%D0%B2-%D0%B7%D0%B0- -%D1%88%D0%BF%D0%B5%D0%BA%D1%83%D0%B- B%D0%B0%D1%86%D0%B8%D0%B8/ 72 For example, see: https://sdk.mk/index.php/make- 74 2017 Priebe Report, paragraph no. 18, pp 4-5, and donija/pritisotsi-po-telefon-kako-vo-vremeto-na- paragraph no. 27. This has been described as a type gruevski-i-bedheti-go-odlozhija-izborot-na-sudii- of ‘state capture’ but is perhaps more precisely char- vo-skopska-apelatsija/ acterised as the “capture of the judiciary and prose- 73 Such clientelistic relations are clearly recognized in cution by the executive power”. released wiretaps, see paragraphs no. 39 and 40. 75 See paragraphs no. 39 and 40. Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police | 69

3.4. The individual independence of judges, procedures and dismissal, these were based versus independence of the judiciary as a on quantitative criteria until the adoption whole of the new Law on the Judicial Council. The emphasis was mostly on attainment of monthly The biggest impact of judicial capture is and annual targets, which shifted the focus of on the independence of individual judges. court decisions from an objective assessment While the Judicial Council guarantees the of evidence and the quality of justice to independence of the judiciary as one of the the efficiency and case law of the higher- 81 three branches of government,76 it is clear instance courts. Dominant court presidents the council can also threaten individual would reassign judges to different sectors or independence. Indeed, the Council is often departments within the court, and possibly to used by political and judicial elites to reward influence the supposedly random assignment compliant and loyal judges and to punish those of court cases. who do not conform. This is often achieved The European Court of Human Rights by a failure to scrutinise appointees and by has ruled in favor of previously dismissed means of promotion, dismissal and disciplinary judges in the cases of Mitrinovski v. Republic procedures or performance evaluations.77 of Macedonia, Jashkovski and Trifunovski v. The last round of judicial appointments to Republic of Macedonia, Gerovska-Popchevska the Skopje Court of Appeal was the latest in a v. Republic of Macedonia, and Duma and long list of such examples.78 Most disciplinary Popovski v. Republic of Macedonia – yet the procedures and dismissals were based on decisions are not acted upon. In the case of legal grounds that were too broadly defined, Mitrinovski, for example, the original dismissal 82 i.e. on the grounds of “unconscious, untimely was upheld a second time. The European or haphazard performance of the office of Court of Human Rights has established that judge in conducting court proceedings for the role and influence of the Minister of individual cases”.79 These were particularly Justice, President of the Supreme Court and apparent in the period 2007-15, which overlaps other two members of the Judicial Council with the “purge”80 and opened up the judiciary are incompatible with Article 6 of the ECHR, to entrants without any previous experience because in these cases they were also as a judge, even at the higher-instance courts. the entities that brought procedures for As for performance evaluations, disciplinary disciplinary responsibility and voted to adopt dismissal decisions in the Judicial Council. 76 See Article 2 from the Law on the Judicial Council of RNM, “Official Gazette of RNM” no. 102/2019 from Since they had been directly involved in some 22.5.2019: “The Judicial Council of the Republic of of these cases, the disciplinary procedures North Macedonia (hereinafter: the Council) shall could not be fair. Some sections of the ECtHR’s be an autonomous and independent body of the judiciary. The Council shall ensure and guarantee judgements suggest there was conscious autonomy and independence of the judicial branch abuse on the part of participants in dismissal of government, by performance of its functions in compliance with the Constitution and the laws”. procedures. In Mitrinovski’s case - the only 77 For more information on shortcomings in procedures on appointment, see reports of the Institute for 81 Articles 98 to 131 of the Law on the Judicial Council Human Rights of the Republic of Macedonia (“Official Gazette of RM” no. 60/2006 from 15.5.2006); Venice Commission 78 For example, see Judicial Council of the Republic of Opinion on the Laws on the Disciplinary Liability and North Macedonia, Decision on appointment of judge Evaluation of Judges of the Former Yugoslav Republic in the Skopje Court of Appeal no. 09-315/3 from of Macedonia CDL-AD(2015)042, pp. 22-24. 10.2.2020. 82 ECtHR, Judgement, Mitrinovski v. Republic of 79 Article 75, paragraph 1, item 2 from the Law Macedonia, application no. 6899/12, 30.4.2015; on Courts, “Official Gazette of the Republic of ECtHR, Judgement, Jashkovski and Trifunovski v. Macedonia” no. 58/2006 from 11.5.2006 Republic of Macedonia, application no. 56381/09 and 80 Venice Commission, Opinion on the Laws on the 58738/09, 07.1.2016; ECtHR, Judgement, Popovski Disciplinary Liability and Evaluation of Judges of and Duma v. Republic of Macedonia, application no. the Former Yugoslav Republic of Macedonia CDL- 69916/10 and 36531/11, 7.1.2016; ECtHR, Judgement, AD(2015)042, pp. 6-7; and 2015 Progress Report for Gerovska-Popchevska v. Republic of Macedonia, the Republic of Macedonia, pg. 13. application no. 48783/07, 7.1.2016. 70 | Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police

applicant to request a second Judical Council 3. CONCLUSION procedure after his Strasbourg judgement - the saga went almost unnoticed by the public, Political influence on the judiciary in North especially the outcome of the Supreme Court Macedonia has been apparent for many years. appeal. But between 2006-16, under the VMRO-DPMNE/ DUI coalition, the problem became endemic. The adoption of European Commission’s Recommendations to address the current model of judicial independence has not only problems: failed to prevent judicial capture, but has ÂÂbuild institutional capacity to achieve encouraged new formal and informal channels sustainable results, instead of looking for for corruption. In particular, the creation of the rapid solutions; new Judicial Council has emphasized existing ÂÂmake a comprehensive effort to problems, worsening the hierarchical nature address key weaknesses in the judiciary, of the profession, the absence of judicial which in addition to the legal and autonomy and individual independence, and institutional framework will also focus on clientelistic links between judges and political the Europeanization of judicial culture; elites. The Council has become a vehicle for ÂÂinsist that the Parliament of RNM promoting elite interests, in particular through selects people of undisputed authority and the appointment and dismissal of judges, respect in the legal profession as the non- disciplinary procedures and performance judge members of the Judicial Council; evaluations. The former MoJs who have been ÂÂmobilize the academic community and complicit in this process, and the political civil society to scrutinize the work of the influences at work in the Council, fully justify Judicial Council and the courts, in order to the description of ‘judicial capture’. ensure adequate implementation of the legal framework aligned with European standards; ÂÂdetect and to address the ways in which the individual independence of judges can be influenced; ÂÂactively promote positive examples from the judiciary in order to re-establish standards about what it means to be a good judge; and ÂÂpromote strategic litigation as a means of changing bad institutional practices. Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police | 71

THE JUDICIARY IN NORTH MACEDONIA: THE PROCESS FOR SELECTION, PERFORMANCE EVALUATION, CAREER ADVANCEMENT AND DISMISSAL OF JUDGES Authors: Margarita Caca Nikolovska and Vera Koco

1. OVERVIEW Their preparedness, commitment and effort come from, and depend on, these steps: For a long time, systemic weaknesses in the selection, performance evaluation, changes to and alignment of the legislation career advancement and dismissal of judges (Law on Courts and Law on the Judicial Council) allowed them to be manipulated. Along with to meet international standards, which provide other aspects of the justice system, they were the basis for greater autonomy, independence one of the indicators which led the European and accountability of judicial authorities; Commission to assess the country as having effective and efficient implementation of succumbed to “state capture”. new legal solutions to allow a greater degree of Addressing the situation with meaningful objectiveness, professionalism, transparency reform requires enormous political will, deci- and accountability in the process for selection, siveness and energy. It demands consensus performance evaluation, career advancement from all three branches of government. and dismissal of judges; specific action taken by judicial authorities The most recent country progress to ensure the timely adoption of all bylaws and reports (2018 and 2019) show a general other steps necessary in order for them to do improvement in terms of democratic processes in the country. However, their jobs; judicial reforms and the beginnings of a ensuring they can be held accountable serious fight against corruption, nepotism through internal procedures. and organized crime have still proved This state of affairs underlines the need for unsatisfactory, and require additional serious measures to eliminate the problems effort. that have eroded the justice system. Aligning legislation with European standards would not in itself be enough to restore order and This chapter addresses legislative changes strengthen judicial institutions, but would also and previous legal solutions that regulate the demand the removal of all judges who can be selection, performance evaluation, career shown to have abused their office or behaved advancement and dismissal of judges. These unprofessionally. procedures allowed potential abuse, as well as unprofessional and ineffective performance 2. ASSESSMENTS AND from a number of judges, and have led to high RECOMMENDATIONS FROM levels of public distrust. INTERNATIONAL INSTITUTIONS Examining the problems that plague the judiciary in the Republic of North Macedonia Judicial power is exercised by courts also helps us to understand whether judicial that are autonomous and independent and authorities are ready to address the issue of make judgments following the Constitution, captured institutions. laws and international agreements ratified in 72 | Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police

compliance with the Constitution.83 As holders harmonized performance system based on of the judicial branch of government, judges qualitative and quantitative standards, which ensure the impartial application of the law for would serve as basis for all career decisions. all parties in court processes; ensure equality, The report also stressed the need to get rid equity and non-discrimination on all grounds; of elements in the system of disciplinary ensure protection, respect and promotion of procedures and dismissal of judges that human rights and freedoms; and guarantee undermine judicial independence, and the legal security through the rule of law. This need to guarantee professionalism of the legal system must rely on legitimacy in the Judicial Council, increase its proactive role, adoption of legal norms, and the legality of and improve the quality of education, budget their enforcement. and autonomy of the Academy of Judges and An OSCE analysis of the judiciary’s Public Prosecutors. An important development independence from 200984 indicated the is the recommendation to send domestic possibility that certain influences could affect judges for internships at the ECtHR, to secure the judiciary’s ability to ensure justice is done, conditions for the publication of all court but also referred to the (material and other) judgements within mandated deadlines, to working conditions which allow such influence work on speeding up court processes (with a to be exercised. The findings from that research special focus on case backlogs), and to ensure showed that there are frequent attempts to the rapid enforcement of all ECtHR judgements influence the workings of the justice system. against the state. The Council of Europe Parliamentary In September 2017, the Senior Experts’ Assembly’s Report on “Post-Monitoring Group published another report87 (i.e. the Dialogue with Macedonia” in June 201385 Second Priebe Report) which noted that most indicated the need for enhanced independence of the recommendations in the first report had of judicial authorities, due to suspicions of not been implemented at all. Moreover, many selective justice towards the opposition of of the practices denounced in the 2015 Report the time, but also because of distrust among had continued. The control and misuse of the civil society representatives in the judicial judicial system by a small number of judges system. Moreover, the report underlined the in powerful positions had not diminished need to establish a merit-based system for the significantly. Serious shortcomings were selection, career advancement and dismissal identified, and it was therefore recommended of judges and prosecutors, and to secure that members of the Judicial Council who institutional guarantees for the judiciary’s were not selected from the ranks of judges independence and impartiality. be appointed in a non-political manner. This The Report of the Senior Experts’ Group86 report emphasized the need to conduct a full from 2015 noted backsliding in judicial and independent audit on the operation of the independence. It included recommendations Automated Court Case Management Information for the rule of law and the judiciary intended System (ACCMIS). Recommendations in the to depoliticize the appointment and promotion field of judiciary reforms concern a detailed of judges and prosecutors (in practice, not overview of the Judicial Council’s role and just in theory) and the establishment of a responsibility, with the aim of reducing the influence of the judicial component, as 83 Article 98 of the Constitution of RNM, “Official Gazette proposed by the Venice Commission. Moreover, of RM” no. 52/1991, date of publication: 22.11.1991 84 OSCE, Independence of the Judiciary: Legal Analysis, judges should be excluded from appointing 2009, available at: http//www/osce.org.mk/67585 members to the Judicial Council as part of 85 Parliamentary Assembly, Post-Monitoring Dialogue with fYR Macedonia”, Report no. 13227, 2013 87 Second Report of the Senior Expert’s Group on 86 Report of the Senior Experts’ Group on Systemic Systemic Rule of Law Issues, 2017, available at: Rule of Law Issues, 2015, available at: https:// https://ec.europa.eu/neighbourhood-enlargement/ eeas.europa.eu/sites/eeas/files/urgent_reform_ sites/near/files/2017.09.14_seg_report_on_ priorities_mk.pdf systemic_rol_issues_for_publication.pdf Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police | 73

the quota that is not reserved for judges, and a high level of alignment with other laws and these appointments must be made in a non- has complied with a significant number of politicized way. The report also recommended recommendations. The overall assessment replacing the system of evaluation at the time concluded that the draft law is in line with with a performance management system that international standards and that, if applied focuses on enhancing the quality of justice. in good faith, it can ensure the judiciary’s Individual sanctions should be proportional, independence and efficiency. The Venice and any dismissals on the basis of poor Commission expressed a positive opinion in performance should be a measure of last resort. regard to the clear legal framework. In addition Bearing in mind that there is no opportunity for to other positive changes made to the Law on general or collective vetting of judges, in cases the Judicial Council, the Venice Commission when there is solid evidence of wrongdoing, recommends not using psychometric tests in particularly at senior levels, appropriate steps the appointment of members to the Judicial and measures should be taken in accordance Council, which would reduce the opportunity with the principles of a fair trial. for political influence. Regarding the selection The report recommends urgent revision of of the President of the Judicial Council, the disciplinary procedures and for the Judicial Venice Commission recommends he or she Council to take into account all relevant be elected with a two-thirds majority among findings from the ECtHR, in order to give effect members of the Judicial Council appointed by to its judgements and to ensure than anyone Parliament. affected by a breach of law is restored to the position and rights they previously had. The As a result of the European Commission’s minority of politically-influenced judges should Progress Reports for the Republic of North be subject to effective professional and ethical Macedonia and the Urgent Reform Priorities, rules and, where evidence is available to prove as well as recommendations from the Senior Experts’ Group on Systemic Rule criminal responsibility, they should be held of Law Issues, the overall legal system criminally liable. Judges dismissed on these has improved in terms of alignment with grounds should be barred from practising the international standards, democracy law in any form or at any level. principles and tenets, the rule of law and For many years, the European Commission’s protection of human rights and freedoms. annual reports on progress made by the Nevertheless, continuous effort is needed Republic of North Macedonia under the EU to eliminate risks and perceptions about integration process have indicated problems political interference in the judiciary. In regarding the appointment of judges - that regard, the Judicial Council’s efforts especially candidates from the Academy of to protect judicial independence are Judges and Public Prosecutors - and regarding limited, and it should seek to increase the clarification of grounds for dismissal, the its independence from both external and criteria for performance evaluation and career internal pressures. advancement. In particular, this concerns the enhancement of qualitative rather than quantitative criteria for the performance 3. THE LEGAL FRAMEWORK ON evaluation of judges. THE SELECTION, PROMOTION AND In 2019, the Venice Commission88 issued its DISMISSAL OF JUDGES Оpinion on the Draft Law on the Judicial Council. It emphasized that the draft law has achieved The 2017-2022 Strategy on Justice System Reform defines the guidelines for addressing 88 Barrett et al., Opinion on the Draft Law on the Judicial shortcomings of a normative and institution- Council, adopted at the 118th plenary session of the Venice Commission (Venice, 15-16 March 2019), al nature, as well as those for enhancing the available at: https://www.venice.coe.int/webforms/ independence, impartiality, quality and re- documents/?pdf=CDL-AD(2019)008-e sponsibility of the holders of judicial author- 74 | Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police

ity. Hence, in the period 2017-2019, a series by March 31 at the latest in the year when the of amendments were adopted to the Law on decision must be taken.93 Although the Coun- Courts89 and the Law on the Academy of Judg- cil establishes the number of judges required, es and Public Prosecutors,90 including a com- AJPP does not necessarily comply with this pletely new Law on the Judicial Council,91 to decision because, due to insufficient capacity comply with the recommendations of the Ven- and resources, it enrols a smaller number of ice Commission and GRECO. candidates. This is ultimately reflected in the These changes have altered the conditions Judicial Council’s failure to recruit enough ba- and procedures for the selection of judges to sic court judges in a timely manner. basic courts and higher instance courts, the criteria for performance evaluation of judg- The Law on Courts stipulates es and presidents of courts, and the legal the general conditions grounds and procedure for establishing lia- that should be fulfilled by bility, dismissal and disciplinary measures for candidates for the judiciary, as judges. follows: The desire to find an institutional solution for the removal of corrupt judges, with the ÂÂto be a citizen of the Republic of North full involvement of the relevant institutions, Macedonia; meant that the vetting process had to be ÂÂto actively use the Macedonian abandoned. This was also recommended by language; the international bodies concerned. ÂÂto be capable of work and in good general health, proven by a medical 3.1. The selection of judges certificate; The Law on Courts and the Law on the Ju- ÂÂto have completed law studies and dicial Council of RNM stipulate the procedure acquired 300 ECTS or a VII/1 education for selecting judges for basic courts, which degree in the field of law studies, or to starts with a Council decision on determining have a validated diploma in law studies judicial vacancies at these courts. The Council obtained abroad with 300 credits; takes this decision after considering the opin- ÂÂto have passed the bar exam in RNM; ions of the plenary assembly of the Supreme ÂÂto have a working knowledge of one Court of the Republic of North Macedonia and of the three most used languages in the plenary assembly of judges at the court the European Union (English, French or concerned, based on analysis and a projection German); of judge vacancies. It applies the principle of ÂÂat the time of their candidacy, not to equitable and fair representation of non-ma- be the subject of a fine or misdemeanor jority communities in RNM, in compliance with sanction after offences related to the Judicial Council’s annual work program.92 performance of the law profession, or any The Council then presents this decisionto other criminal offence that is punishable the Academy of Judges and Public Prosecutors by at least six months of imprisonment; ÂÂto be computer literate; 89 Law on Courts, “Official Gazette of RM” no. 58/2006, ÂÂto possess the integrity necessary for 62/2006, 35/2008, 150/2010, 83/2018 and 198/2018 and “Official Gazette of RNM” no. 96/2019 performance of the judicial office; and 90 Law on Amending the Law on the Academy of Judges ÂÂto possess the ability to carry out the and Public Prosecutors, “Official Gazette of RM”, no. judicial office, which is verified by ethical 163/2018 91 Law on the Judicial Council of RNM, “Official Gazette and psychometric testing. of RNM” no. 102/2019 92 Article 44, paragraph 2 of the Law on Courts, “Official Gazette of RM” no. 58/2006, 62/2006, 35/2008, 93 Article 45 of the Law on the Judicial Council of RNM, 150/2010, 83/2018 and 198/2018 and “Official “Official Gazette of RNM” no. 102/2019 Gazette of RNM” no. 96/2019 Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police | 75

Judicial candidates are not required to innovation under the new law, and imply that actively use any particular foreign language: personal and social abilities will be taken into a language exam is part of the admission account for basic court candidates. This legal tests for the Academy of Judges and Public solution was designed to avoid the formal Prosecutors, and establishes the language method applied by the Judicial Council for the proficiency of future judges. Consequently, selection of judges to basic courts from the admission to the AJPP allows candidates to AJPP ranking list. Moreover, the Council could improve their knowledge of foreign languages. assign value to other qualities, make a better selection from ranking lists with proposed Special conditions for the candidates, and even change candidates’ selection of judges to basic rankings. courts stipulate that candidates The Law on the Judicial Council of RNM stipulates that the Judicial Council debates should: and decides on the selection of judges at sessions attended by at least eight council ÂÂhave completed training at the members with voting rights.96 The Council Academy of Judges and Public Prosecutors is comprised of 15 members, of which the as stipulated by law; and President of the Supreme Court of the Republic ÂÂin cases when candidates have of North Macedonia and the Minister of Justice not responded to the open call as are members by virtue of their public office, graduates from AJPP, to have at least and they participate in the council’s work four uninterrupted years of service as a without the right to vote.97 Under the legal judge at another basic court, and to have situation in effect until 2018, the President of been positively evaluated by the Judicial the Supreme Court as a member of the Judicial Council. Council was given the right to vote. Allowing the Minister of Justice to take part in council In fact, the completion of training at the sessions but without voting rights should Academy of Judges and Public Prosecutors is contribute to reducing the opportunities for the only way for judges to start their careers at interference by the executive government basic courts, and therefore the reassignment in important decisions about the judiciary. of judges with work experience of four years Preventing the President of the Supreme Court from one court to another is only possible from voting at council sessions stops him or when AJPP graduates have not responded her from having an influence in decisions made to the open call. This could put judges who by both the Supreme Court and the Appeal have already acquired judicial experience and Council of the Supreme Court. This implements have demonstrated solid performance at a recommendations made by international disadvantage. bodies, and is a positive development. The Judicial Council selects judges to Discussions and decision-making are basic courts from a ranking list submitted based on the final ranking of candidates, and by the AJPP, showing judges who responded each council member with the right to vote is to the open call. The order of appointment is obliged to explain and justify their selection established according to their scores on the decision.98 The explanation of these decisions final ranking list and the results of interviews is an innovation that contributes to a better conducted by the Judicial Council.94 selection process, and to greater transparency Interviews conducted by the Judicial in the Judicial Council.

Council, which account for a maximum of 96 Article 49, paragraph 1 of the Law on the Judicial 10% of the total number of points,95 are an Council of RNM, “Official Gazette of RNM” no. 102/2019 97 Article 6 of the Law on the Judicial Council of RNM, 94 Article 47 of the Law on the Judicial Council of RNM, “Official Gazette of RNM” no. 102/2019 “Official Gazette of RNM” no. 102/2019 98 Ibid, Article 49 95 Ibid 76 | Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police

Candidates who have received at least tunity for individual members of the Judicial eight votes from the total number of council Council with voting rights to give a verbal ex- members with the right to vote are considered planation of their selection decision for their selected. They are informed of this decision in selection, contributes to greater transparency writing, and the decision includes reasons for and accountability of the Judicial Council, and their selection and is published on the Judicial a better selection process. Council’s website and in the Official Gazette of In particular, the Institute for Human Rights’ RNM.99 monitoring report100 shows that the Council The Institute for Human Rights’ monitor- had been most active in selecting judges in ing of the Council noted that, under previous 2016, when it selected 26 of them, of whom practice, voting ended when the top-ranked eight were destined for basic courts and 18 for candidate had received a sufficient number of higher instance courts. votes, i.e. eight votes from the council mem- In 2017, the Judicial Council selected a to- bers with voting rights (which implies a two- tal of five judges for higher instance courts: thirds majority vote in the Council), without the one to the Supreme Court of RM; one to the Bi- opportunity to cast votes for remaining candi- tola Court of Appeal; and three to the Skopje dates on the list - who could have ended up Court of Appeal. receiving a higher number of votes than the At the same time, selection processes previous candidate. In other words, this meth- in 2017 included the appointment of several od of selection prevented votes being cast for court presidents: the Supreme Court of RNM, other candidates on the list who might have Shtip Court of Appeal, Administrative Court, received more of them. Basic Court in Gevgelija, Basic Court in Kru- A positive innovation under the Law on shevo, Basic Court in Sveti Nikole, Basic Court Courts is the fact that candidates who have Skopje 1 in Skopje, Basic Court in Kumanovo, served at least one term of office at interna- Basic Court in Resen and Basic Court in Tetovo. tional courts and fulfil relevant conditions can In 2018, the Judicial Council selected a to- also be selected as judges to courts at any tal of four judges for higher instance courts, of level - although the limitation to one term of whom one was for the Skopje Court of Appeal, office should not be in place, as Council of Eu- one for the Higher Administrative Court, and rope member states do not have this rule. two for the Administrative Court. It appointed presidents for the Skopje Court of Appeal and 3.2. Analytical and statistical data on the the Basic Court in Debar. selection of judges Due to the lack of precise criteria for After frequent public criticism of the Judi- evaluating judges’ performance in accordance with international principles cial Council’s performance, and following the and standards, new legislation was first and second round of amendments to the adopted to monitor and evaluate judges, Law on the Judicial Council (“Official Gazette aimed at emphasising the judiciary’s of RM” no. 197/17 and 83/18), the Council at- independence and autonomy tempted to improve its practices through the reforms described above. This means that decisions on judge selection in 2017 and 2018 In 2018 the Judicial Council announced differ from those taken in the previous peri- open calls for the selection of presidents to od, as they include the complete list of can- the Basic Court in Krushevo and the Basic didates, the points assigned for their perfor- Court in Berorvo, but these appointments were mance, work biographies of candidates, total made in 2019. work experience and results from the anony- At future selection processes, this obliga- mous survey. This, together with the oppor- 100 Institute for Human Rights, Baseline Analysis of the Judicial Council’s Performance, 2019, pg. 16, 99 Ibid, Article 49, paragraph 1 available at: www.ihr.org.mk/publikacii Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police | 77

tion for Council members is bound to cause their performance were mainly based on the a certain amount of disagreement about the quality and quantity of their decisions (i.e. the merits of different candidates, and will, in turn, number of completed cases assigned to them lead to delays in the selection of judges for through the Automated Court Case Manage- some courts, in spite of the obvious shortag- ment Information System (ACCMIS)). That sys- es (for example, at the Skopje Court of Appeal). tem did not take into consideration many of the The altered composition of the Judicial Coun- skills necessary for judges, such as the ability cil will mean it has more influence in selection to make argument-based and fully reasoned procedures – especially since, for a long time, decisions, to handle complex cases and lead this body received direct external instructions, court hearings, and it did not assess whether as wiretapped conversations between the the conditions for promotion had been met. President of the Judicial Council, Aleksandra Monitoring the performance of judges and Zafirovska, and senior government officials re- court presidents is done by regular evalua- vealed. tion (once every four years) and extraordinary evaluation (in cases where judges apply for a 2016 saw the highest number of judges position at another court, a higher court or as selected. This was before the law changed, a court president, but only when the candidate and when the Judicial Council’s selection has not undergone evaluation in the previous procedure was insufficiently detailed year as part of their regular performance ap- and did not include precise obligations praisal). for members of JCRNM (such as the Changes to the Law on the Judicial Coun- obligation to verbally justify their choice of cil from May 2018102 introduced new qualita- candidate). This provided an opportunity for subjective and possibly biased selections. tive criteria which the Venice Commission assessed as unclear and insufficiently objective, and they were clarified under the completely Although the work of this Council was the new Law on the Judicial Council adopted in subject of harsh criticism, especially among 2019. For the first time, the new model for judges, who were often dissatisfied with the quality evaluation stipulates that, in addition results of its selections,101 its procedures con- to the commission comprised of members of tinued to be opaque until its composition was the Judicial Council that takes the final de- changed (2018/2019). This marked the start of cision on performance evaluation of judges the process for opening up the Council’s work- and court presidents, the evaluation process ings to the public. must also include judges from higher instance courts, who will assess the quality of decisions 4. PERFORMANCE EVALUATION taken in individual cases. OF JUDGES Quality evaluation is performed by a five-member commission consisting of judg- Performance evaluations aim to assess es from all appeal courts, which examines five judges’ effectiveness, their professionalism randomly selected cases (via ACCMIS) and five and the quality of their decision-making in cases nominated by the judge being evaluated. proceedings. These commissions are formed by the Judicial This could be achieved through profes- Council through random selection of members sional development on the basis of individual and in the manner established under a bylaw needs, which would secure the conditions for adopted by the Judicial Council. Each mem- judges’ career advancement and strengthen ber of the commission evaluates the judge’s their independence and autonomy. Under pre- performance in all the cases, and the final as- vious legislation, the criteria used to evaluate sessment is calculated as the average value

101 See: Libertas, Judge Antoaneta Dimovska with an open letter: ‘Why do we stay silent about the 102 Law on Amending the Law on the Judicial Council, scandalous selection of judges?’, 25.11.2017 “Official Gazette of RM” no. 83/2018 78 | Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police

of individual assessments for all the cases Court is competent to act upon complaints reviewed. Details of the evaluation procedure against decisions taken by the Judicial Council. should be regulated under the Methodology for If the decision to repeat an evaluation is taken Performance Evaluation, as secondary legisla- after a complaint, it is performed on the basis tion,103 based on the opinion of the Supreme of a report by a commission comprised of three Court of RNM. members of the Council, which cannot include The new legal amendments to disciplinary members who participated in the commission proceedings brought changes which could see that issued the performance evaluation. a judge dismissed by the Judicial Council af- Articles 80 to 85 of the Law on the Judicial ter two consecutive “negative” assessments. Council stipulate qualitative criteria for According to recent changes to the Law on performance evaluation of judges, as well as Courts, this situation is considered to amount the method for assigning points, in compliance to unprofessional and incompetent perfor- with the 2019 recommendations from the mance of the judicial office, and is considered Venice Commission. a serious disciplinary breach.104 In addition to regular and extraordinary 4.1Qualitative criteria evaluations of judges, the Law on the Judicial According to the new legislation, the Council stipulates special evaluations for qualitative criteria for performance evaluation judges who are not subject to supervision by of judges include: a higher instance court (the Supreme Court ÂÂThe ability to lead court proceedings of RNM) and when former judges from an effectively; international court apply for a post in North ÂÂThe timeliness of actions in court cases; Macedonia. Unlike the previous law, the new and legal solution does not anticipate additional ÂÂThe quality of a judge’s work, based on the and special criteria for evaluating judges number of decisions revoked due to procedural on their performance. As part of its work on violations compared to the number of resolved monitoring judicial performance, the Council cases that concluded as normal. is expected to develop a template with data Given that quality will be assessed through and information about a judge’s performance an insight into judges’ actions and decision according to the evaluation criteria, which is making, the Judicial Council should revise the completed on a monthly basis, but there are no Methodology with indicators on complexity exact guidelines about whether and how this of cases to take into account the legal field, template will be part of judges’ assessments. complexity of subject matter and type of court, Based on reports from these commissions, on the basis of previous positive opinions from as well as its insight into the quality and the Supreme Court of RNM.105 The methodology quantity of judges’ work, the Council takes a aims to establish the number of cases that decision and explains its assessment. Judges a judge should resolve within one month, and court presidents who are dissatisfied with due consideration of the scope of work with their assessment are entitled to lodge a and types of cases in different courts. This complaint about it within eight days, following enhanced the role of the Supreme Court, giving which the appeal council can reject, approve it the competence to issue opinions and adopt or repeat the evaluation process. These legal the methodology at its plenary assembly. provisions were also set out under the previous legislation. The appeal council at the Supreme 4.2. Additional qualitative criteria for performance evaluation of court presidents 103 Article 85 of the Law on the Judicial Council, “Official The law stipulates additional qualitative Gazette of RNM” no. 102/2019 criteria for the performance evaluation of 104 Article 76 of the Law on Courts, “Official Gazette of RM” no. 58/2006, 62/2006, 35/2008, 150/2010, 83/2018 and 198/2018 and “Official Gazette of RNM” 105 Article 85 of the Law on the Judicial Council, “Official no. 96/2019 Gazette of RNM”, no. 102/2019 Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police | 79

court presidents who have undertaken the ÂÂa methodology for performance monitoring responsibility of judging cases106: and evaluation of judges; ÂÂwhether the work program and action plan ÂÂa rulebook on the operation of the have been implemented; commission for assessment of quality in court ÂÂwhether the Court Rules of Procedures proceedings; have been applied, which is assessed ÂÂa methodology with indicators on the through insight into reports from regular and complexity of cases. extraordinary checks performed by a higher The Judicial Council amended its Rules of instance court, the Council or the Ministry of Procedure108 to regulate the way decisions on Justice; performance evaluation were taken, as well as ÂÂACCMIS functionality, which is assessed in how the three-member commission was ap- the same way; pointed, and defined how performance eval- ÂÂthe quality of court administrative uations should be explained and published. decisions; These are not regulated under primary law. ÂÂpublic relations and transparency in operation. 5. JUDGES’ CAREER ADVANCEMENT

4.2. Quantitative criteria Attending training from the Academy of Article 86 of the Law on the Judicial Council Judges and Public Prosecutors is very impor- stipulates quantitative criteria107 for the tant to judges’ career prospects. Non-attend- performance evaluation of judges: ance at mandatory training is defined as a dis- ÂÂthe scope of their work, which is assessed ciplinary violation and the judge concerned is by the number and type of resolved cases liable to disciplinary measures. compared to the expected average, obtained The Council selects as judges people who from ACCMIS’s monthly reports; and hold the highest expert and professional at- ÂÂthe quantity of a judge’s work: the number tributes and enjoy an excellent reputation in of reversed and revoked decisions, compared the performance of their duties, based on the to cases that were resolved in the usual way, following criteria: which is assessed though details on ACCMIS. ÂÂexpert knowledge and specialization in Only decisions where legal remedies are allowed the profession, and participation in ongoing and were reversed due to wrongful application training; of the law are taken into consideration. ÂÂpositive performance evaluations; Secondary legislation by the Judicial Council ÂÂthe ability to express themselves fluently, should be used to implement the new system both verbally and in writing, which is assessed for performance evaluation. The law stipulates on the basis of draft decisions and expert that the Council shall adopt all bylaws within interventions by judges; a deadline of three months from the day when ÂÂa willingness to take on additional work, the law enters into effect, but at the time of and help resolve the backlog of cases; writing they have still not been adopted. ÂÂmentorship, education and the like; and 109 The Judicial Council should develop: ÂÂlength of service as a judge. ÂÂguidelines and templates with data and The career advancement of judges is close- information about the work performed by ly related to their performance evaluations and judges and court presidents, in compliance the process for their selection. As part of its with evaluation criteria; competences, the Judicial Council appoints ÂÂa decision on the calculation of effective judges to higher instance courts (Court of Ap- work hours for judges; 108 Rules of Procedure for the Judicial Council, “Official Gazette of RNM” no. 60/06, 150/10, 100/11, 20/15, 106 Ibid, Article 92 61/15, 274/2019 107 Law on the Judicial Council, “Official Gazette of RNM” 109 Article 48 of the Law on the Judicial Council, “Official no. 102/2019 Gazette of RNM” no. 96/19 80 | Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police

peal, Administrative Court, Higher Administra- grounds for recusal, as stipulated by law.111 tive Court and Supreme Court of RNM) and court Amendments to the Law on Courts reduced presidents. Candidates who have responded to the number of serious disciplinary violations the open call and fulfil conditions and crite- that lead to dismissal to only four. It was pre- ria stipulated under the Law on Courts and the viously nine. Law on the Judicial Council of RNM are eligible, Additionally, new amendments to the Law and are ranked according to the specialization on Courts removed the grounds for judges to required for the judge vacancy.110 be dismissed if the European Court of Human Rights established they had violated Article 6. DISMISSAL OF JUDGES AND 5 or Article 6 of the ECHR. This provision was DISCIPLINARY MEASURES contrary to ECtHR’s case-law and international practice on the judiciary’s independence In addition to the termination of judicial and impartiality.112 office, which is a process established by the Judicial Council when relevant conditions from 5.2. Unprofessional and incompetent the Constitution are fulfilled and in a manner performance of judicial duties stipulated under Article 54 of the Law on the The unprofessional and incompetent per- Judicial Council, another important responsi- formance of judicial duties means that the bility is the dismissal of judges. quality of a judge’s work has been unsatisfac- According to Article 74, paragraph 1 of the tory in cases where: Law on Courts there are two grounds on which ÂÂtwo consecutive performance evaluations judges can be dismissed from office, as fol- have shown that the judge does not fulfil the lows: criteria for successful performance, due to ÂÂA serious disciplinary violation that renders their own fault or without any justified reason, the judge unfit to perform their office as which resulted in two negative assessments stipulated by law; and adopted in compliance with the procedure ÂÂunprofessional and incompetent established by the Law on the Judicial Council performance of the judicial office, under of the Republic of North Macedonia; conditions stipulated by law. ÂÂthe judge is convicted in court and given a sentence of less than six months, and this 5.1. Serious disciplinary violations sentence is the direct result of actions they Serious disciplinary violations for which took in the pursuit of their duties as a judge, judges can be liable include: purposely or with conscious negligence; ÂÂa serious breach of the peace and public ÂÂthe judge has disclosed classified order, and other serious forms of indecent information without prior authorization, i.e. behaviour that harm the reputation of the has disclosed information and data about judge and of the court; court cases, thus violating the legal obligation ÂÂblatant influence and interference in to protect the secrecy of court proceedings another judge’s performance; when the public is excluded in compliance with ÂÂa refusal to submit a declaration of assets the law; and statement on conflict of interests in ÂÂthe judge has failed to schedule court compliance with the law, or when the data hearings, without any justified reason, in submitted are untruthful; or ÂÂevident violation of the recusal rules in 111 Article 75 of the Law on Courts, “Official Gazette of RM” no. 58/2006, 62/2006, 35/2008, 150/2010, situations when judges were aware or should 83/2018 and 198/2018 and “Official Gazette of RNM” have been aware of the existence of any no. 96/2019 112 Institute for Human Rights, Policy Brief on Position and Performance of the Judicial Council of RM, pg. 9, 2018, available at: http://ihr.org.mk/uploads/IHR%20 -%20Sudski%20sovet%20na%20RM%202018%20 110 Ibid (MKD)%20web.pdf Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police | 81

the cases assignd to them, or has otherwise ÂÂillegal use of court funds; delayed court proceedings; ÂÂexerting influence on judges’ independence, ÂÂthe judge has not taken on cases assigned in relation to decisions taken in individual to them, thereby allowing the statute of cases; limitations for criminal prosecution, or the ÂÂfailure to enforce provisions related to the statute of limitations for the execution of management and assignment of court cases; sanctions for criminal offences, to take effect; ÂÂviolation of provisions related to the ÂÂthe judge has taken on cases that are not adoption of, and changes to, the annual assigned to them through the Automated Court schedule of judges; Case Management Information System; ÂÂfailure to notify the Judicial Council of the ÂÂthe judge has intentionally and unjustifiably Republic of North Macedonia about serious made grave professional errors, where differing disciplinary violations by judges at the court, interpretations of the law and facts do not when the court president was aware of such amount to legal grounds for establishing violations and had attempted to cover them liability.113 up; ÂÂpreventing supervision at the court, in 5.3. Minor disciplinary violations compliance with the law.114 Minor disciplinary violations that are liable As is the case with judges, disciplinary to attract disciplinary measures include: measures can be taken against court ÂÂminor public order disturbances or breaches presidents for less serious forms of violations of the peace, or other less serious forms of that amount to grounds for dismissal. indecent behavior that affect the reputation of Legislative changes relating to the liability the court and of the judge; of judges and court presidents are aimed at ÂÂuse of their judicial office and reputation to improving the legal framework which stipulates further their private interests; that if a judge or court president is responsible ÂÂfailure to fulfil mentorship assignments; for a serious disciplinary violation or behaved ÂÂviolation of the rules governing work leave unprofessionally or incompetently, they will be and absence; dismissed. ÂÂfailure to attend mandatory training; In cases where judges are held liable for ÂÂfailure to wear judicial robes at court trials. disciplinary violations, a voting procedure establishes which measures will be imposed. In these cases, disciplinary measures This is intended to make judges more effective, can be taken when the violation has been but also to ensure that the measures take committed intentionally, due to obvious account of the gravity of the offence. negligence, or through their own fault, without any justifiable reason and when the violation 5.5. Procedure for establishing liability of has had serious consequences. judges and court presidents The procedure for establishing liability of 5.4. Dismissal of court presidents judges and court presidents is initiated within Court presidents are dismissed from their six months from when the violation became office when the Judicial Council, acting in known, but not later than three years after it accordance with the relevant procedure, has was made. This procedure is defined as urgent established the following legal grounds have and confidential, and it is led in camera and been met: with due respect for the reputation and dignity ÂÂoverstepping or violation of their legal of the judge or court president concerned, in authority; compliance with regulations on personal data protection. At the request of the judge or court 113 Article 76 of the Law on Courts, “Official Gazette of RM” no. 58/2006, 62/2006, 35/2008, 150/2010, president, the Council decides whether the 83/2018 and 198/2018 and “Official Gazette of RNM” no. 96/2019 114 Ibid, Article 79 82 | Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police

procedure will be public and can be attended of 16 decisions)118 showed they involved by a representative from the Association of significant legal as well as procedural Judges (Article 61 of the Law on the Judicial shortcomings. Council). The contents show they lack sufficient When the Judicial Council establishes arguments. Notably, they do not include any that a judge or court president has been in arguments about the violations of which the serious breach of discipline or has carried out judges are accused, explanation of the facts, their duties in an unprofessional or negligent or of the importance of the means by which manner, it will take the decision to dismiss judges can be recused. More specifically, them if at least eight members of the Council they question whether a report signed by the with voting rights vote to do so. A judge or manager of a forensic institute who happens court president is then removed from their to be a close relative of the judge concerned duties until the procedure is over. is legitimate, or whether it raises suspicions Judges or court presidents whose rights about the impartiality of the process. have been violated as part of these procedures Furthermore, dismissal decisions do not are entitled to a second hearing and a final include any reference to the liability of other judgement by the European Court of Human judges on the panel (except for the panel’s Rights in Strasbourg, if they ask the Judicial president and rapporteur) in cases that imply Council to reopen the case within 30 days, the panel has made a decision collectively, and not later than three years after the ECHR’s where a public hearing has been held in the initial judgement becomes final.115 first instance, or where a panel of three judges The Law on the Council on Establishing from the first instance court are involved. Facts and Initiating Procedures for Establishing When judges stay silent about circumstances Liability of Judges116 (2015), which dealt with that bring their impartiality and integrity into the dismissal of judges, proved problematic. question, the panel’s president or rapporteur It was not a constitutional category, did not can also be held liable for it. The procedural adequately define the powers involved, and rules for both criminal and civil law allow them was intended to establish Judical Council to question all the participants in the procedure procedures in cases of unprofessionalism about relevant facts and circumstances. and negligence. This piece of legislation was Analysis of decisions taken by the Judicial abolished in a 2018 law.117 Council suggest that procedures that were discontinued because the statute of 7. LEGAL AND PROCEDURAL limitations came into effect do not contain SHORTCOMINGS IN DECISIONS TAKEN enough detail about the dates involved. BY THE JUDICIAL COUNCIL Decisions which saw several judges dismissed due to delayed court proceedings An Institute for Human Rights analysis or slow decision-making do not include of decisions taken by the Judicial Council in any reasons for the judges’ actions that procedures for lack of professionalism and would indicate negligence or unprofessional negligence in the period 2010-2014 (a total performance. This gives the impression that decisions about when to initiate dismissal procedures are selective, and only taken against particular judges.

115 Ibid, Article 73 116 Law on the Council for Establishment of Facts and Initiation of Procedure for Establishing Liability of 118 Analysis on Independence of the Judicial Council of Judges, “Official Gazette of RM” no. 20/2015 the Republic of Macedonia: Strive and Challenges, 117 Law on Revoking the Law on the Council for Institute for Human Rights, 2015, available at: Establishment of Facts and Initiation of Procedure for http://www.ihr.org.mk/uploads/publications_pdf/ Establishing Liability of Judges, “Official Gazette of sudskisovet.pdf?fbclid=IwAR1VEczUQQ9fY8FvY0L5t53- RM” no. 11/2018 BKjbvul8LAaeKf8QEdhBj6PKh_O7DEmkrYE Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police | 83

In some cases, it was established that In 2019, after the Judicial Council’s judges had acted in an unprofessional and composition was changed, it took a more negligent way in probate cases. They had not serious approach and five judges were delivered court decisions, failed to ensure dismissed. These dismissals included the decisions about fines were delivered to local president and two judges from the Supreme courts, or had not communicated decisions Court of RNM, the president of the Basic about asset confication to PRO. But it was Criminal Court Skopje (who is also the subject not always clear whether the judges were to of criminal proceedings in the Basic Criminal blame, or the court services. Court in Veles on the grounds of abuse of Analysis suggests that the Judicial Council public office and duties) and another judge has not developed any criteria for how its from a basic court.119 written decisions should be presented. It is unclear whether they should include an 7. CONCLUSIONS introductory section or the name of the council’s president, who signs off on the ÂÂProgress has been achieved in terms decisions. Moreover, decisions are taken of legislation alignment, i.e. acceptance of without listing the case code and log numbers, proposals from the international community under different dates and with a number of and the adoption of new legislation (in 2018 other shortcomings that indicate the drafting and 2019). Changes to the old legislation have of decisions is inadequate and unclear. contributed to reforms in the judiciary and the rule of law. Some of these Judicial Council decisions ÂÂBased on the European Commission’s were contested before the European Court country progress reports about the of Human Rights in Strasbourg and were implementation of reforms, and the Priebe revoked on the grounds of violation of Reports on possible abuses in the functioning Article 6 of the ECHR (the Mitrinovski, V. of judicial authorities, the judiciary had Duma and Gerovska-Popchevska cases). undeniably been exploited as a means of These decisions were revoked because capturing judicial institutions and blocking the Council members who initiated the possibility of reform. procedures later participated in the appeal, ÂÂIn its capacity as an independent and including the Minister of Justice and autonomous body responsible for guaranteeing President of the Supreme Court. However, the independence and impartiality of the the ECtHR judgments were inadequately judicial branch of government, the Judicial and belatedly enforced. Council is vital to reform and could make the biggest contribution to resolving wrongdoing 7.1. Analytical and statistical data on the in the judiciary. dismissal of judges ÂÂIn terms of efficiency, the Judicial Council takes too long to organize the selection In the previous period, (2008-2010) a total and appointment of judges to vacant posts, of 24 judges were dismissed. In the subsequent especially at courts in Skopje, which is reflected period, (2011-2012) five judges were dismissed, in the courts’ efficiency and effectiveness. and a further five in 2013-2014. ÂÂJudicial Council decisions are not published, Between 2015 to 2018 - during the most despite substantial public interest. critical period for state capture - the ÂÂThe criteria for performance evaluation, Judicial Council was least active in which emphasises the quality of work

terms of monitoring judges’ liability for 119 Minutes from 317th session of the Judicial Council of unprofessional and negligent conduct. the Republic of North Macedonia, held on September Only three dismissal procedures were 10 2019; minutes from 328th session held by the Judicial Council of the Republic of North Macedonia, conducted, although there were several held on December 25 2019, available at: http://sud. attempts to launch more. mk/wps/portal/ssrm/ 84 | Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police

(accounting for 60%) over quantity (40%), are aimed at strengthening judges’ professionalism RECOMMENDATIONS and expertise so they make rationalised and ÂÂCompetent institutions like the Judicial understandable decisions and enforce the law. Council and the Supreme Court must ÂÂBased on the Council’s previous practice immediately begin implementing legal regarding judges who have been unlawfully changes in order to rescue captured and irregularly dismissed and have proven at institutions and to ensure the rule of law. the ECtHR that domestic institutions violated ÂÂAll bylaws and procedures necessary procedure, it could be concluded that the for the functioning of the Judicial Council Council does not act with the necessary and related to selection, evaluation, urgency, nor assesses the merits of relevant promotion and dismissal processes must applications, but focuses only on tackling be adopted immediately, in compliance with the Law on the Judicial Council. procedural violations, as indicated by ECtHR. ÂÂEffort is needed to ensure that all Judicial violations are not properly clarified and the institutions (Judicial Council, State therefore the judges who have been wrongly Commission for Prevention of Corruption, dismissed find it impossible to be reinstated. Financial Police and Public Prosecution) promptly and efficiently take all measures necessary to reverse state capture. They should also act on information in the public domain that could lead to the resolution of cases where individual judges have come under suspicion, for the elimination of public doubt. ÂÂComplaints about the performance of judges, court presidents and courts must be taken seriously, and submitted to the Judicial Council by citizens and legal bodies, in order to identify possible violations. ÂÂIn order to fill vacant posts, the Judicial Council must organize the selection of judges for all courts in the state promptly. These selection processes should be implemented in full compliance with the new conditions and selection criteria. ÂÂEffort is needed to ensure the publication of non-enforceable decisions taken by the Judicial Council, by means of anonymized personal data. ÂÂProcedures to implement ECtHR judgments must be conducted in a proper and timely manner, including a serious review of applications for repeated procedures, not merely in terms of procedure but also on their merits, in order to rectify wrongs and enable judges to take up their posts again. Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police | 85

DYSFUNCTIONALITY AND POLITICAL INTERFERENCE IN THE PUBLIC PROSECUTION, THE POLICE AND SECRET SERVICES

Author: Gordan Kalajdziev

1. INTRODUCTION expect.122 This is probably one of the reasons why citizens indicate they trust the police For long time, North Macedonia’s legal more than the courts and public prosecution. system has been in crisis: the public has lost Yet they are unaware that most cases do not trust in the judiciary and public prosecution, even reach court.123 and the system as a whole is in disarray.120 Every The most recent public prosecution new government is aware of the seriousness “reforms”, which follow the 2017-2022 Strategy of the problem, but all have failed to tackle it on Justice System Reform adopted in 2017,124 properly because they do not examine its root were rushed and poorly implemented.125 causes. So far the courts have received more This is unsurprising, since the country has attention, with the public prosecution and never discussed public prosecution reform. police only addressed sporadically. Reform of Internationally, public prosecutors are still the secret services has gone undiscussed, moving from the executive branch to become except behind closed doors. part of the judiciary. Consequently, there are Law professionals often overstate the no clearly established international standards importanceof courts compared to the for public prosecution - at least not to the public prosecution, the police and other same extent as for the judiciary. law enforcement authorities. Consequently, The public prosecution service in North international human rights instruments, the Macedonia has been reformed along the constitution and legal regulations usually same lines as the judiciary – in other words, assume the public distrust the police but trust not very successfully. The public prosecution the courts, in the sense that the latter can did acquire some important guarantees of offer protection to citizens against unfounded independence. Some judicial solutions were prosecution and arbitrary and unlawful attacks never fully adapted to the public prosecution on their rights and freedoms.121 Enormous service (for example, the transfer of attention and funds are channelled towards competences from first-instance courts has helping the judiciary perform better. But the left certain gaps). Thanks to a helpful twinning courts receive far less, and they deliver a worse service than the public has a right to 122 See in G. Kalajdziev, Judicial Reforms in the Republic of Macedonia – Concepts and Obstacles, in Rule of Law Enhancement in the Western Balkans, Aspen Conference Reader, Berlin, 2014. 123 See in G. Kalajdziev, Who is Who in the Criminal Law 120 See in D. Krapac, V. Kambovski, G. Lazhetikj, G. System of the Republic of Macedonia, MRKKP, Skopje Kalajdziev, Strategy on Criminal Law Reform, Ministry 2014, MRKPK, G. Kalajdziev, On the Fight against of Justice of the Republic of Macedonia, Skopje, 2007, Organized Crime and the Legal State, FOSM, Skopje, available at: (www.justice.gov.mk). 2013 121 See in G. Kalajdziev, Court as the Guardian of Human 124 https://www.pravda.gov.mk/toc1/94 Rights, MASA Inventory, Skopje, 2014; G. Kalajdziev, 125 Compare with 2019-2021 Strategy Plan of the Ministry Role of the Public Prosecution and the Courts in of Justice adopted in 2018, available at: https://www. Control over the Police, Inventory of the Faculty of pravda.gov.mk/Upload/Documents/STRATESKI%20 Law “Iustinianus Primus” Skopje, 2016. PLAN%202019-2021%20god.pdf 86 | Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police

project with Italy,126 the 2007 Law on the Public institution was seen as crucial: its new Prosecution Office and the constitutional independence would, the public were told, give reforms (Amendment ХХХ) were unexpectedly it the ability to tackle high-level corruption. In progressive and, in terms of its independence, hindsight, the real reason for these reforms have brought the public prosecution service was to enable criminal investigations to closer to the judiciary. Nonetheless, the chief continue, despite a Supreme Court ruling that 131 state prosecutor (unlike other prosecutors) they must be halted. Extending the term of is still nominated by the government and office of the chief special prosecutor Katica appointed by Parliament, tying them to politics Janeva was also problematic. Janeva should and the executive branch. However, the have been re-elected in 2019 after her four- public prosecution is now significantly less year term of office, but VMRO-DPMNE indicated it would not support her re-election.132 hierarchical, reducing the chances of political Although – after long and painstaking interference. discussions – lawyers found a legally The 2010 Law on Criminal Proceedings made sustainable solution to the problem of significant changes to the public prosecution, the wiretap evidence having been illegally creating the basis for it to manage the police obtained, LPPO jeopardised it by invoking the and grow into a powerful institution in the deadline under Article 22 of the Law on the fight against crime and corruption (with its Special Prosecution Office for the use of such own investigative capacity). But these plans recordings as evidence. Previous attempts to have not been implemented by the former invoke this argument have, however, failed. chief state prosecutor Marko Zvrlevski127 and There is an important distinction between the the current incumbent Ljubomir Joveski.128 deadline for filing indictments, and the use of There are several explanations for this, ranging allegedly illegal wiretaps as evidence by that from ignorance to incompetence and a lack deadline. of will to strengthen the public prosecution, It is still unclear why the SPO became a but ultimately the answer is straightforward: scapegoat, given that it enjoyed broad support neither the social nor the political will exists to among the public. enforce the rule of law. The Special Prosecution Office was a particular focus for reform.129 Transforming 2. THE POLICE AS A KEY the SPO130 from an ad hoc into a permanent ELEMENT OF THE CRIMINAL JUSTICE SYSTEM 126 CARDS 2003, Judicial Project for Establishing a Reliable Judiciary in Western Balkans; CARDS 2005, Fight against Organized Crime and Corruption – Public Although in theory the public prosecution Prosecution Office. should lead pre-investigation procedures, in 127 Marko Zvrlevski held the office of chief state practice the police enjoy greater autonomy at prosecutor from 2013, but was dismissed due to unlawful actions in 2017. His name also featured in this stage. The police are legally subordinate the wiretaps. to the public prosecution, but in practice they 128 In 2017, Ljubomir Joveski was appointed Chief State enjoy more autonomy. This is because the Prosecutor of the Republic of North Macedonia. public prosecution are poorly staffed, more 129 See in G. Kalajdziev, Legal Challenges Faced by the Special Prosecution Office, FOSM, 2018, available at:http://www.merc.org.mk 131 This idea for SPO’s transformation prior to expiration 130 The Prosecution Office for Criminal Offences Related of its mandate, which is not attributed to any to and Arising from the Contents of the Illegally known author, was hastily integrated in the Strategy Intercepted Communications, known as the Special on Justice System Reform adopted by the new Prosecution Office, was established with the Law government in 2017 and quickly became generally on the Prosecution Office for Criminal Offences acceptable, and was ultimately renounced by all, Related to and Arising from the Contents of the due to reasons unknown to authors of this text. See Illegally Intercepted Communications, adopted by the footnote 5. Assembly of the Republic of Macedonia on September 132 See G. Kalajdziev, Who is Afraid of SPO and Who is 15, 2015 and with the appointment of KaticaJaneva Afraid for SPO, available at: https://novatv.mk/koj- as the chief special prosecutor. se-plashi-od-sjo-a-koj-za-sjo/ Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police | 87

TABLE 1 Reported, indicted and convicted adults (2002-2017)

YEAR 2002 2004 2006 2008 2010 2012 2014 2016 2017

Reported 18.171 22.591 23.514 26.409 30.004 31.860 37.164 20.502 20.582

Unknown 7.114 9.088 8.868 10.947 14.621 16.380 19.237 8.636 9.979 perpetrators

Rejected reports 2.425 2.956 3.006 3.341 3.580 4.385 5.909 4.424 4.088

Filed indictments 7.756 9.641 10.757 11.181 10.990 10.351 11.661 7.280 6.351

Convicted 6.383 8.097 9.280 9.503 9.169 9.042 11.683 8.172 6.273

Source: State Statistical Office (www.stat.gov.mk)

passive and are sometimes not informed of by or through the police. In the period 2014- cases until criminal charges are drafted. 2018, 65% of procedures launched by the Statistics show that the police fail to Public Prosecution Office were on the basis identify a large proportion of criminals. This of MoI reports, while in the same period the share is continuously increasing, from one share of procedures launched by the Public third of reported perpetrators (7,114 unknown Prosecution Office based on public information of 18,171 reported) in 2002, to almost two- ranges from 1.80% to 3.80%.135 thirds (19,424 unknown of 34,436 reported) in Rather than the Public Prosecution Office, 2013.133 The number of reported perpetrators the vast majority of submitting parties make reached its highest in 2014, (37,164 people, their reports to the MoI. By law, businesses of whom 19,237 are “unknown”) followed by and legal entities must submit these reports a significant fall (in 2017, they accounted for directly to the Public Prosecution Office, 20,582 people, of whom 9,979 were unknown). while citizens report criminality to the police. It should be noted that independently of the In 2018, of the total reports made to the fact the number of reported crimes has been prosecution services against 20,259 adult increasing for years, the number of defendants criminal suspects, the vast majority (13,666, or stands at around 10,000 people per year, 67.4%) were submitted by MoI, 3,054 (15%) of reaching record lows in 2016 and 2017 (only the reports were submitted by citizens, while 6,351 defendants in 2017). other state bodies submitted 792 criminal Based on official data, the number of reports (3.9%). See Table 2. rejected criminal reports is low. This number The number of criminal procedures varies significantly depending on whether launched by the Public Prosecution Office has these reports are submitted by the MoI or seen a marked increase every year, although it directly by citizens, other state bodies or legal is still too low (see Table 3). The gradual rise in entities.134 The prosecution service rejects the number of PPO-initiated procedures shows almost half of reports directly submitted by that it is taking on a more active role, albeit citizens or other bodies, while it approves and in the early stage of proceedings. According processes almost all criminal reports submitted to the new LCP, the MoI’s pre-investigations lead to formal criminal charges in a small 133 Perpetrators of Criminal Offences in 2017, State number of less serious or straightforward Statistical Office, available at: http://www.stat.gov. mk/Publikacii/2.4.18.07.pdf 134 T-04: Reported adults according to types of criminal offences, submitting parties, types of decisions and 135 The Stockholm Syndrome of Macedonian Prosecutors, method for submission of criminal reports, available available at: https://prizma.mk/stokholmskiot- at: http://www.stat.gov.mk/Publikacii/2.4.18.07.pdf sindrom-na-makedonskite-obviniteli/ 88 | Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police

Графикон 1 Поднесени кривични пријави пред crimes.136 This could be because the public ЈО за 2018 година prosecution now follows media reports closely, 924 303 and when it believes a criminal offence has 792 been committed but not reported, it launches criminal procedures on its own initiative. 1.520 The fact that the Public Prosecution Office rejects almost half the criminal reports submitted to it and only a fraction of the criminal reports submitted through the MoI confirms 3.054 the thesis that the police do not only fail to report all crimes brought to their attention, but also fail to forward reports from citizens. The police are probably pre-selecting a proportion of them. How else can the difference in the approval rates of reports made by citizens and legal entities be explained, given that 13.666 it varies significantly depending on whether MOI Other state they were submitted directly or through the CITIZENS bodies police? A proportion of criminal reports are DAMAGED LEGAL PPO initiative genuinely unfounded, which means the police ENTITIES Others reject them in order not to burden prosecution services with unfounded reports. But it would be useful to investigate whether - and to what extent - the police have appropriated the public prosecutors’ authority to take decisions

TABLE 2 Overview of criminal charges by submitting parties motioned before HPPO and POOCC in 2018

SUBMITTING PARTIES Total reports HPPO Damaged Other state PPO per person MOI Citizens Others legal entities bodies initiative Skopje 9657 5952 1740 907 548 417 93 Bitola 4078 2909 528 318 89 134 100 Shtip 3164 2209 455 135 99 226 40 Gostivar 2964 2359 286 123 35 128 33 PPOCC 396 237 45 37 21 19 37 Total 20259 13666 3054 1520 792 924 303 % 100% 67,5 % 15% 7,5 % 3,9% 4,6 % 1,5%

Source: Public Prosecution Office of RNM (http://jorm.gov.mk/category/dokumenti/izvestai/)

136 This unusual situation under LCP whereby the police notify and work under directions from PPO during the earlier stages of proceedings, instead of leading investigations independently and concluding them with criminal charges, creates statistical confusion. Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police | 89

not to initiate proceedings for some criminal reduce their workload now that investigations offences, and whether there are reports that are conducted by the public prosecution. have not been documented at all because The police must have autonomy and clear the police have detered people from formally responsibility in police investigations, but submitting reports. that should not stifle their ability to take the initiative. Procedural provisions under LCP and TABLE 3 Number of criminal report taken into LLP must not just set out the the obligation of work by PPO (per year) the police to notify the public prosecution in a Remaining Year Total Resolved (%) timely way, but also stress their obligation to (%) follow the prosecution’s guidelines and orders. 2014 39.300 68,6% 31,4% In the future, the public prosecution must be 2015 33.405 66,8 % 33,2 % more active in exercising this role which, of 2016 30.074 59,4 % 40,6 % course, depends on adequate staffing levels. 2017 29.637 56% 44% 2018 33.195 54% 46% We already knew the police had a monopoly Source: Public Prosecution Office of RNM over criminal detection and investigation. The police are not only most likely to report Table 3 gives an overview of the total criminal offences, but they also dominate number of criminal reports in which the Public the initial stages of proceedings. Contrary Prosecution Office took action, and their to the letter of the law, most criminal outcomes. It indicates the PPO’s performance. reports are submitted to the MoI instead Since the backlog has grown since the LCP of the public prosecution. According to came into effect, it seems likely the PPO is LCP,they should be submitted to competent struggling to cope with its increased workload prosecution offices. under the new adversarial model, and taking This is because the police have a monopoly on the burden of activities that used to be over investigative capacity. Whereas in done by the police or the courts. theory the pre-investigation procedure is managed by the public prosecutor, in most cases, the police complete criminal 3. THE PUBLIC PROSECUTION AS AN investigations independently. INVESTIGATIVE MANAGER, REPLAC- ING THE POLICE MONOPOLY IN CRIMI- The police need autonomy in these initial NAL DETECTION AND INVESTIGATION investigations - primarily due to the need for The judicial police are criminal police rapid action, but also because they have more who should co-operate closely with the resources. The public prosecution’s budget public prosecution, so a proportion of them and resources are modest. Although there are integrated into the public prosecution’s are numerous prosecutors, their offices do team.137 This concept is borrowed from not have enough expert associates and other Italy (where it yields great results), but it support staff, while their budget does not even encountered a great deal of resistance from cover routine work. The state has undermined MoI elites because their aim is to keep power and marginalized them for a long time. within the Ministry. The reform is intended to Statistics show that the police do not just hold a monopoly over investigations, but are free the police from MoI influence and ensure also the key player in the criminal law system, they report to the public prosecution. determining whether and whom should be held The goal is not to paralyze the police responsible for crimes. Most perpetrators are and other crime detection bodies, or even to never detected, while almost all those reported

137 Academy of Judges and Public Prosecutors, “Module to the police are accused and convicted. 1: Pre-investigation Procedure”, (Manual), 2012, pg. 5 90 | Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police

The public prosecution and courts are through secondary legislation or via a under-resourced and do not have enough memoranda of co-operation. The refusal to independence and autonomy from the accept a “subordinated” role, i.e. to serve executive branch. In order to speed up as assistant to the public prosecution, is a investigations and overcome the police problem here and elsewhere in Europe.140 monopoly, we need to establish investigation Traditionally, police officers who perform centres within the public prosecution. certain functions in criminal proceedings are, Of course, in the early stages of an more or less, under the control of the executive investigation the police must have enough branch. This means that in operational terms autonomy to act without prior approval from public prosecutors are these officers’ superiors. public prosecutors, so they can act quickly But in terms of hierarchy, their careers are where necessary and establish whether there dependent upon their superiors at the relevant are grounds for a full investigation. Nonetheless, ministry. Italy has overcome this hierarchical public prosecutors must be kept informed of all dualism by forming so-called police sections their actions. Experience elsewhere suggests that are under the direct management of the they will take full advantage of the autonomy chief state prosecutor - i.e. they are part of the 138 they do have. The police are reluctant to prosecution team, meaning that they cannot give up their dominance in the early stage of be reallocated or assigned different tasks an investigation, and this manifests itself in without the public prosecutor’s approval. a failure to inform prosecutors about crimes. Ideally, we would recommend forming separate In practice it means they can close cases police departments that are answerable to the without public prosecutors ever hearing about chief state prosecutor, whose assessments them, which is a legal authority reserved for determine their career advancement. 139 public prosecutors. But creating separate criminal police under Here, I will focus on those investigations the control of the chief state prosecutor that the police complete on their own, only is not feasible. Criminal police will remain notifying public prosecutors after they are under the auspices of the MoI, while financial finished. Frequently, public prosecutors police will stay under the Ministry of Finance. stand aside and leave the police to complete Nonetheless, some measures need to be investigations, even when they are notified taken in order to strengthen the public that a criminal offence has been committed. prosecution’s powers over police involved in This is often blamed on workloads and a lack criminal proceedings, so as to reduce the risk of investigative capacity at public prosecutors’ of direct interference by the executive. Police offices. All this makes their legal authority to inspectors assigned to the public prosecution manage investigations an illusion. should be exclusively under its control, and Consequently, police and prosecution they should not be removed from cases by the competences need to be better distinguished executive without the chief state prosecutor’s and defined in law. This was not previously approval. Secondly, the public prosecution an issue because, by law, prosecutors were should have a say in the career progression involved only after the completion of police of police inspectors who are members of the investigations (i.e. after criminal charges were prosecution team, as well as other police brought). These issues could be regulated

138 See in K. Ambos, Comparative Summary of 140 In 2004, Germany renamed criminal inspectors the National Reports, in L. Arbour/ A. Eser/ from prosecutorial assistants (Hilfsbeamten der K. Ambos/ A. Sanders (eds.), The Prosecutor Staatsanwaltschaft) into prosecutorial inspectors of a Permanent International Criminal Court, (Ermittlungspersonen der Staatsanwaltschaft).See in Max-Planck-Institutfürausländisches und J-M Jehle, Vom Hilfsbeamten zur Ermittlungsperson, internationalesStrafrecht, Freibourg 2000, 495, 526. Funktionswandel der Polizei in europäischen 139 Italy is the single example where this practice is Kriminaljustizsystemen, во Die Kriminalpolizai, more seriously sanctioned, with police officers available at: http://www.kriminalpolizei.de/ held criminally liable for a failure to report criminal themen/polizei/detailansicht-polizei/artikel/vom- offences. hilfsbeamten-zur-ermittlungsperson.html Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police | 91

officers involved in criminal investigations.141 This is why the basic principles of hierarchy The public prosecution should be obliged and subordination144 for public prosecutors to oversee the lawfulness of police investi- should be redefined. They now make public gations by the time a decision is taken about prosecutors’ jobs more difficult, and inhibit whether to launch prosecutions. They should reform. Some principles of public prosecution also ensure the police and similar bodies are organization would undoubtedly have to be respecting human rights. changed. Hierarchy and subordination, insofar as they imply a centralised system, need to be re-examined. While there are arguments for 4. TRANSFORMATION OF THE PUBLIC and against hierarchy in public prosecution, PROSECUTION: FROM STATE CONTROL maintaining the principle of subordination is TO INDEPENDENCE completely unfathomable given that it is not supported by the organizational or functional Social and political norms should be needs of this institution and sometimes reflected in the justice system. Mirjan R directly conflicts with the principle of Damaska asserts that the functioning of the legality.145 Subordination is the inevitable result criminal law system and its institutions (and of hierarchy;146 and it implies that even when the model of criminal proceedings) depends orders are unlawful and those executing them on the way in which overall state governance know it, under the principle of subordination is regulated. He identifies this as the source they must carry them out regardless. of differences between Anglo-Saxon and From an institution tasked to protect European legal systems.142 The evolution of the state interests, the public prosecution slowly public prosecution service has led to changes becomes an institution that must care for the in its legal authority, which have distanced it rights of individuals, i.e. the rights of victims from the executive and increasingly defined and damaged parties, but also the rights of it as a justice body. Public prosecution defendants.147 The principles of hierarchy systems still differ according to the way in and subordination mitigate the executive’s which public prosecutors are appointed, the influence on the public prosecution. Public type of functions assigned to them, and a prosecutors are convinced that they are series of other characteristics, but they share necessary and refuse to discuss reform. The the aim of achieving greater independence. contradiction between the move to make Public prosecutors are being given more individual prosecutors more independent responsibilities as they acquire the ability, for and accountable and the legal principle of example, to liaise with victims of crime.143 subordination is obvious. There are similar misunderstandings about the public prosecution’s autonomy and independence. In theory, their autonomy is often 141 The fact that authorized officers are administratively equated with theirindependence. Autonomy subordinated to the MoI means their careers depend on their superiors at these ministries, and therefore does overlap with independence, but differs they have no incentive to complete tasks assigned to in important respects. Our country’s norma- them by public prosecutors. tive approach to public prosecution does not 142 See М. Damaska, The Faces of Justice and State explicitly refer to its independence, but inter- Authority, Yale University Press, New Haven/ London, 1986. national documents consider independence 143 See L. Raichevikj, The Role of Public Prosecution in the Criminal Law System, independent edition, 144 Analysis of historical reasons for adoption of published doctoral dissertation at the Faculty of hierarchy and subordination as underlying principles law “Iustinianus Primus” in Skopje, Skopje, 2014; in public prosecution organization, in L. Raichevikj, T. Vitlarov, Public Prosecution in the Legal System cited above, pp. 29-45. in Macedonia, Shtip, 1999; J. Ilievski, History of the Macedonian Public Prosecution – Position, Role and 145 Ibid, pp. 83-91 Perspectives, doctoral dissertation at the Faculty of 146 See T. Stojanovski, Police in the Democratic Society, Law “Iustinianus Primus” in Skopje, Skopje, 2013. Skopje, 1997, pg. 172 147 See L. Raichevikj, cited above, pp. 89-90 92 | Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police

as the basic precondition for public prosecu- mance of the Council of Public Prosecutors.150 148 tion. According to Lidija Raichevikj, the “in- The situation with the Judicial Council is the dependence of public prosecutors is achieved same. In this regard, I completely agree with and protected through the method for their Denis Preshova’s opinion that “the model of appointment and dismissal, the possibility judicial and prosecutorial self-governance, of unhindered and independent performance which was presented as the best model for of the prosecutor office, the appointment of new democracies in Central and Eastern Eu- prosecutors (not only on the basis of formal rope, has not yielded the expected results”.151 education criteria), but also through efforts Scholarly literature distinguishes several for quality education, differential and clear types of independence that the public pros- relations with institutions to which public ecution strives to achieve: institutional, func- prosecutors are referred in their work, secur- tional and personal. All are mutually reinforc- ing funds to finance the public prosecution’s ing. In particular, political independence is operation, finding administrative and technical closely related to institutional independence. solutions for proper performance of their office Prosecutors cannot independently and impar- and a series of other circumstances“. tially carry out their office when they are controlled, selected or appointed by the executive The most serious threat to public or legislative government, or when it decides prosecutors’ independence is their on their dismissal. Creating autonomous bod- dependence on the executive. The public ies to decide on these issues is a misguided prosecution implements the policy of attempt to demonstrate the independence of legislative and executive governments public prosecutors, because there is no guar- by enforcing laws proposed and adopted antee that their decisions are not influenced by them, but the executive also secures by another branch of government. Moreover, other preconditions for its operation - no system exists in law for their oversight and from funding to proposals for selection, control.152 appointment and dismissal. The functional independence of public prosecutors is also in question because they liaise with other bodies in the course of their work. The complete functional independence These factors directly affect the perfor- of public prosecutors would require each pros- mance of the prosecutors’ office, create pro- ecutor to be able to detect criminal offenders fessional insecurity, and make it impossible to and prosecute them - which they self-evi- 149 fully enforce law and justice. States, espe- dently cannot do alone. cially those belonging to the European legal The personal independence of public pros- system,try to overcome this situation by tak- ecutors is of crucial importance. It does not ing steps to create bodies that appoint and solely depend on personality traits and the dismiss prosecutors. However, these bodies moral and ethical credentials of prosecutors, are artificial constructs, and the normative but on the legislative and executive govern- acts that govern them are inconsistent. In the ment. These two branches of government de- Republic of North Macedonia, the Council of cide on the social status of public prosecutors, Public Prosecutors is the body responsible for as well as their places of work, conditions, appointing prosecutors, dismissing them and funding and salaries. Given their increased acting on complaints, but the state does not responsibilities, they should be properly paid have a separate body to monitor the perfor- and their workload should be manageable.153

150 Ibid. 148 Guidelines on the Role of Prosecutors, Eight United Nations Congress on the Prevention of Crime 151 See D. Preshova, Judiciary Capture, 2020, pg. 15. (the and the Treatment of Offenders, Havana, Cuba, title and pages of Preshova’s article on independence 1990, contained in International Documents for of judiciary in this volume). Independent and Effective Judiciary, OSCE, 2011, 152 See L. Raichevikj, cited above, pp. 232-233; D. cited by Raichevikj, pg. 93. Preshova, Judiciary Capture, 2020. 149 See L. Raichevikj, cited above, pg. 23 153 See L. Raichevikj, pg. 233. Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police | 93

5. THE RISE AND FALL OF SPO AS against high-level corruption and possible govern- AN IMPORTANT TOOL IN THE FIGHT ment wrongdoing. This would be done by means of AGAINST CORRUPTION AMONG amendments to the Law on the Public Prosecution POLITICAL ELITES Office (LPPO). Unfortunately, this became a political and media circus, and SPO paid the price - partly The Prosecution Office for Criminal Offenc- because of Katica Janeva, who ended up as a de- es Related to and Arising from the Contents of fendant in criminal proceedings, but also with the Illegally Intercepted Communications, better blessing of the most important political factions, known as SPO, was established by a separate both domestically and internationally. law,154 and with broad societal consensus, to Although, in legal terms, the best solution was investigate and deal with government wrong- for the SPO to complete its mandate according to doing that became apparent after the release the Law on the Special Prosecution Office (LSPO), of thousands of wiretaps. The SPO became there are several reasons why the SPO has trans- the main hope in the fight against organized formed a completely autonomous institution into crime and high-level corruption among polit- a relatively autonomous part of the regular pros- ical elites. It was given considerable auton- ecution. One was the attempt to extend Katica omy, both financial and operational, but also Janeva’s term of office without re-election, which support from the international community. In was SDSM’s idea. The other two reasons concerned truth, SPO had problems with its independence SPO’s problematic constitutionality (two petitions since it was established: from the start, its are lodged before the Constitutional Court), and focus was the seriously corrupted elite of VM- the biggest problem of all was the controversial RO-DPMNE, although other political parties are deadline for filing indictments under Article 22 from not immune to corruption. It is widely acknowl- LSPO.155 edged that political influence from abroad, as Several versions of an LPPO draft anticipat- well as the selection of which wiretaps to in- ed the transformation of SPO and offered differ- vestigate, greatly influenced SPO’s work, and ent models for its organizational setup. Here we contributed to its demise. explain the most relevant. Under the first option, Our society still needs an independent anticipated under the strategy and further de- prosecution office that would be sufficient- veloped in the draft text of a working group led ly strong and independent to fight crime and by the academic Vlado Kambovski, SPO was to be corruption among political elites. This is es- incorporated into PPO in a similar way to the ex- pecially the case when the public prosecution isting Prosecution Office against Organized Crime continues to be politicized and the selection and Corruption. Itwould be competent to prosecute of the chief state prosecutor remains contro- high-level corruption throughout the country, with versial because of the executive government’s a headquarters in Skopje. This proposal eliminated undeniable influence on the process. Indeed, the constitutionality problem and opened a small until recently there was general agreement door for other prosecution offices to potentially that the SPO’s capacity should continue to be take over non-completed investigations, thus en- used, rather than disbanded. suring the continuation of SPO’s work. On the other In spite of serious objections to its work, hand, there are no doubts that SPO’s autonomy and public opinion supported the SPO. The Strat- effectiveness would have been sacrificed to some egy on Justice System Reform backed contin- degree. uing its work although VMRO-DPMNE did not, The second, less ambitious option, which for understandable reasons).The goal was to emerged somewhat unexpectedly in late 2018, was transform it into a permanent institution that developed as a completely new LSPO drafted by would be a serious instrument in the fight SPO itself. Under it the SPO, prior to expiration of its mandate under the first law, would be transformed 154 Law on the Prosecution Office for Criminal Offences Related to and Arising from the Contents of Illegally Intercepted Communications “Official Gazette of RM” 155 See in G. Kalajdziev, More Important Problems Faced by SPO, no. 08-4352/1 from 15.9.2015). Foundation Open Society – Macedonia, Skopje, 2018. 94 | Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police

from an ad hoc into a regular institution, main- Contrary to our expectations, the fiercest taining and enhancing its current autonomy. discussions during adoption of the new LPPO Rather immodestly, SPO proposed a law which, did not concern faith in the SPO’s ability to do without re-election, would have extended its its job,156 but two issues that do not fit in this mandate by five years, thereby maintaining law. One of them concerns the fate of investi- its competences, autonomy, salary brackets, gations launched after the 18-month deadline etc. The investigations into the wiretaps would has expired, which became especially impor- have continued indefinitely, which was prob- tant after the Supreme Court ruled that SPO lematic. Additionally, it is unlikely that Parlia- investigations initiated after expiration of the ment would agree for the deadline for investi- deadline are unlawful. The attempt to “solve” gations to be simply abolished. the problem with the deadline for investiga- The Ministry of Justice was the first to tions or indictments under LPPO is legally un- come up with a version of the draft text pre- founded: first, this issue pertains to criminal pared by Kambovski’s group, but unnecessarily proceedings, i.e. LCP; and second, because burdened it with two controversial issues that any open and current issue cannot be solved did not belong there: (1) the attempt to impose post festum (at a later date). If the deadline has an LPPO solution for the outcome of investi- expired and investigations became unlawful, gations launched after the 18-month deadline they should have been stopped in the inter- under Article 22 from LSPO; and (2) reiteration est of the suspects, and cannot be continued of the problem of the legality of using wiretaps. as if nothing had happened pursuant to leg- According to the MoJ proposal, the SPO and islation adopted at a later date. It would have Prosecution Office against Organized Crime and been best to leave this issue to be solved by Corruption competences would be transferred court jurisprudence – but politicians thought to the Prosecution Office against Organized otherwise. Crime and High-Level Corruption. Proceedings The second problem related to the law- that had already begun would be continued by fulness of evidence from the illegal wiretaps. the new prosecution office. Although at first According to Skopje Court of Appeal case law, sight this appeared to be a merging of the two they are allowed because they are not illegal- prosecution offices, in practice it would close ly obtained by prosecution authorities, but by SPO and transfer its staff and technical capac- third parties, which complies with opinions ity to the Prosecution Office against Organized upheld by academia and with scholarly opinion Crime. The formulation that “initiated proce- abroad, primarily in the United States.157 dures shall be continued by the Prosecution Favoring a solution whereby investigations Office against Organized Crime and High-Lev- initiated after the deadline’s expiration under el Corruption, in the stage in which they are Article 22 from LSPO are continued by effect of transferred” is softer than the previous MoJ the law (LPPO), the MoJ unnecessarily sacri- solution, which was explicit that investigations ficed several important things: 1) the SPO as a should continue. permanent instrument in the fight against political elites and as a symbol of the rule of law; After the Racket affair was revealed, everybody expressly renounced the 156 Unfortunately, nobody answered the question of how a decision was taken overnight that is diametrically SPO, and discussions about the LPPO opposite to the reform strategy, which enjoyed a were reduced to several issues that strong consensus for SPO to become a permanent were irrelevant to this law. The SPO was institution. Moreover, nobody explained why the new chief special prosecutor was not selected, given that consigned to history, and the recently LSPO is still in effect, and there were no procedures adopted version attempts to compensate initiated into this matter. for its abolition with a degree of autonomy 157 See G. Kalajdziev, Unlawful Evidence in Criminal for the Prosecution Office against Organized Proceedings, MRKPK, no. 2, 2017, pp. 39-50; G. Kalajdziev, B. Arifi, A. Marshavelski, A. Bozhinovski, Crime and Corruption. Unlawful Evidence in Criminal Proceedings, OSCE, Skopje,. Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police | 95

2) unhindered completion of key cases, the interception of communications, as part of reason for which the SPO was formed; and 3) broader security service reform, were pursued the late adoption of LPPO, which as an impor- with insufficient transparency. The model has tant requirement for joining the EU, has many created a new centre of power, the Operational harmful consequences. Technical Agency, which would probably only If lessons are to be learned from all this, replace the Administration for Security and a future government should launch genuine Counterintelligence (UBK). The new Agency for rather than cosmetic reforms of the public National Security (ANS), meanwhile, is merely a prosecution by strengthening its independ- cosmetically-reformed UBK. ence from the executive and the police. The The security intelligence community in RNM special prosecution, however, should become is made up of three services: the Agency for National Security, the Intelligence Agency and a small but strong and compact team within Military Security and Intelligence at the Ministry the Prosecution Office against Organized Crime of Defence. ANS is the new independent agen- and Corruption, and should have its own in- cy, replacing the infamous UBK. It is a coun- vestigative team and operational and financial terintelligence service tasked with detecting autonomy. and preventing espionage by foreign services, detecting and preventing threats to the con- 6. SECRET SECURITY SERVICES: A stitutional order, terrorism and other forms of SERIOUS PROBLEM FOR THE DEMO- serious and organized criminal activity against CRATIC ORDER the state. The Intelligence Agency (IA) is an intelligence service controlled by of the Pres- For many decades, secret services have ident, tasked with collecting and processing posed a particular problem to our democracy political, economic and military data about and the rule of law. In principle, the law should foreign states, institutions and services, as stop these services from engaging in any po- well as persons of interest to the state. The litical activities or acting in the interests of any competent organizational unit for military se- religious, ethnic, social or economic group. curity and intelligence is an agency within MoD However, it is generally acknowledged that the which detects and prevents activity by foreign main weakness of our secret services is their military intelligence services, as well as taking politicization. The last reform of these services intelligence action against foreign states and took place four years after the wiretap scan- nationals that affect the state’s national se- dal, which revealed major abuses at security curity. and intelligence services, but unfortunately it The legal authority granted to our failed to address this weakness. The transfor- security services is a problem. It has serious mation of the Administration for Security and implications for human rights and democracy. Counterintelligence into the Agency for Na- After the secretive bylaws that regulate these tional Security reportedly involved some form services dating from the former SFRY became of vetting process which was supposed to illegal (after adoption of the new Constitution), have ensured it was depoliticized. they effectively operated outside of the Similarly, the problem of inter-ethnic dis- law, hiding behind the Law on Internal trust and its effect on the secret services Affairs that specified they operated with has not been addressed systemically, but by “police authorization”. The fact they are now means of informal agreements between the regulated under the new Law on Interception Macedonian and Albanian political parties in of Communications is good. However, the move government, and under the influence of foreign was rushed and inadequately debated, and organizations and “friendly” security services. the regulations allow them to be deployed in Security service reform should have been an arbitrary way and with little scrutiny. A new thorough, systematic and transparent, allow- body has been formed, the Council for Civil ing experts and the broader public to con- Oversight over Interception of Communications, tribute to the process. Efforts to reform the as an additional instrument to ensure respect 96 | Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police

for privacy. Unfortunately, although the makes judicial and other oversight extremely Council was formed in 2018, it is not yet fully complicated, and even unfeasible. Sometimes, operational, which is an indication that reform even the most minimal grounds for suspicion efforts remain largely theoretical.158 by the security services are accepted by the According to Article 18 of the Law on chief state prosecutor. Judges can approve Interception of Communications (LIC), measures requests for interception that are based on for the interception of communications for the suspicion of intent, which raises privacy protection of the state’s security and defense concerns. This leaves plenty of leeway for law interests include: enforcement agencies to abuse the measures, 1. interception and recording of telephone putting judges in an ad acta position. In and other electronic communications; spite of this, legislators have opted for an 2. interception and recording of building odd solution: at the request of the security interiors, indoor spaces and facilities, services, intercepts are submitted to the and entrances to such buildings, indoor Supreme Court by the chief state prosecutor, spaces and facilities for the purpose of who has neither experience nor knowledge creating conditions for implementation of of their subject matter. To make matters interception measures; worse, if these measures were abused, the 3. interception and video recording of persons prosecution would face the problem of how in open spaces and at public places; and to sanction measures proposed by the chief 4. interception and audio recording of the state prosecutor. contents of people’s communication in North Macedonia’s security servicesare face open spaces and at public places. several difficulties. One is a legacy from the In addition to these, pursuant to past, while others are the result of inadequately provisions under LIC (Articles 32 and 33), developed legislation regarding the distinction upon the request of authorized bodies for between different security services. Several implementation of interception measures (the anomalies exist: the treatment of issues that chief public prosecutor has to be informed are outside the competence of the relevant of such requests), the operators are obliged service; overlapping competences among the to provide metadata for participants whose services, especially between intelligence and electronic communications are monitored. The counterintelligence; and the abuse of invasive new laws entrust these services to additional measures when collecting information. It often authorities. Therefore, with a relevant court happens that some events and people whose order (Articles 25, 28 and 32 from LANS), the activities are classified as security threats are ANS has the exclusive right to intercept and investigated by several different services. record international telecommunications with Reform of the security services was the assistance from operators, in cases where it most heavily criticized element of the legal cannot be otherwise performed.159 system in the Priebe Report. It is objectively Generally speaking, the terms and incomplete, and needs serious monitoring.160 conditions under which these measures could be taken are rather ill-defined. The 160 In the Priebe Report, interception of communications is one of the areas where significant shortcomings fact they often have a preventative function have been observed. Hence, the report established the concentration of power with the Administration 158 Designed as a new body, the Civil Oversight for Security and Counterintelligence (UBK) and Commission is neither a state body, a legal entity nor the malfunctioning of the oversight mechanism a non-governmental organization, and therefore it for UBK. In technical terms, the Priebe Report cannot use the funds intended for website design indicated that UBK holds a monopoly over the use of and hosting, an archive, etc. The most logical surveillance equipment and has exclusive rights in solution is for this commission to operate as a body the interception of communications, while pursuant within Parliament, and to appoint members drawn to Articles 175 and 176 from the Law on Electronic from civil society and experts. But proper control over Communications (LEC), this administration is enabled the legality of interception is not well regulated under to directly intercept communications, autonomously the new Law on Interception of Communications. and unimpeded, irrespective of whether court orders 159 See in G. Kalajdziev, P. Gjurchilova (Eds.), Manual for have been issued. Security service reform, and in Implementation of Interception of Communications particular UBK reform, was therefore one of the key Measures, DCAF, Skopje 2019. recommendations in this report. Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police | 97

7. CONCLUSIONS AND ÂÂWe need to take a serious approach to RECOMMENDATIONS resolving dysfunctionality in the justice system. Fast-tracked political solutions are ÂÂA clear and consistent set of reforms, unrealistic: we would do better to consult supported by solid comparative and lawyers themselves. empirical research, is a precondition for the success of judicial and police reforms. A comprehensive reform effort must use rational and proven methods to detect and eliminate all dysfunctional elements of the public prosecution, police and judiciary. ÂÂUnfortunately, reforms in our country are more focused on aligning national legislation with the most recent standards in comparative and international law, instead of actual research into the root causes of the system’s dysfunction. Theoretical concepts and solutions that work in developed democracies do not guarantee success in North Macedonia. Continuous changes to national regulations have led to underperformance. Insufficient knowledge of the new regulations, which requires knowledge of the law and practices in the states from which these solutions have been taken, could lead to improvisation. ÂÂInstitutional reform, staffing and technical resources are another precondition for successful reforms. Legal norms, good though they may be, have limited power. Experience shows that the way in which police, public prosecution and courts act upon cases in their day-to-day practice is often based on unwritten rules, and is difficult to change by legislative and administrative means. If new legal solutions and a new organizational structure are imposed without adequate preparation and a realistic assessment of possible risks, reforms could fail. Implementing foreign solutions from comparative law, without enough knowledge of the weaknesses in our system, could collide with existing values in our legal culture and put an unnecessary burden on practitioners. In that respect, very important reform concepts - including the completely new model for relations between the police, public prosecution and courts - still founder on misunderstandings and resistance from a number of different sources. 98 | Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police

Recommendations Recommendations for the police for reform of the Public Prosecution Office ÂÂGreater coordination and alignment of ÂÂMore effort to promote the police and public prosecution reforms. independence of the public prosecution. ÂÂReform of the police and other bodies Changes should be made to way the with investigative authority, as well as chief state prosecutor is selected and secret (security) service reform, must be dismissed so that it does not depend on done in a more transparent manner. the executive, although this would trigger ÂÂParticular measures are needed to changes to the Constitution. strengthen the functional superiority of ÂÂPublic prosecution as an institution the chief state prosecutor over police requires completely new principles of sections involved in criminal proceedings, institutional and functional organization. which would significantly reduce the risk Hierarchy and subordination, as of direct interference by the executive basic principles of the prosecution government. organizational setup and modus operandi, call into question the independence of the public prosecution office. ÂÂAdequate systems of control over the Recommendations public prosecution. for the Secret Service ÂÂThe public prosecution service needs ÂÂAdoption of the new law marked the to meet modern European standards, with start of security service reforms, but they due respect for international norms. are still incomplete. More effort is needed ÂÂThose selected as public prosecutors to define competences, in order to avoid should be individuals of integrity and abuse of legal authority for political adequate ability, relevant education and purposes or to the detriment of human training, i.e. with a firm grasp of their rights. ethical duties, as well as the human ÂÂGreater attention should be paid to rights and fundamental freedoms enjoyed the legal framework and mechanisms by suspects and victims, as guaranteed that perform oversight and control over under the domestic and international law. these services. Particular concerns are ÂÂAvoid de-professionalization of the raised about the body for civil oversight of Council of Public Prosecutors. interception of communications. ÂÂUrgent action is needed to reinforce staffing and technical resources at the public prosecution service and to establish investigation centres, i.e. departments with independent prosecutorial investigators. ÂÂBetter regulation is needed in order to distinguish between police and public prosecution competences. ÂÂA comprehensive analysis of the SPO’s functioning should be conducted in order to better organize the Prosecutor’s Office for Organized Crime and Corruption, as a lasting instrument in the fight against corruption of the political elite. Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police | 99

ABUSE OF THE AUTOMATED COURT CASE MANAGEMENT INFORMATION SYSTEM (ACCMIS) Authors: Margarita Caca Nikolovska and Vera Koco

1. OVERVIEW before the Law on Management of Case Flow in Courts was adopted. Although the Abuse of ACCMIS is one of many ways in law introduced strict rules and obligations which politics influences the judiciary. regarding the management of court case flow, In spite of strict legal norms governing the these rules were not adhered to by all courts in use of the automated information system, the state. Apart from minor omissions related judicial authorities allowed staff to override to insufficient IT knowledge, significant abuse the automatic assignment of court cases for of the system started soon after it was put around five years (2013-17) at the Basic Court into operation at the beginning of 2013 at the Skopje I in Skopje (renamed the Criminal Court two most important courts (the Supreme Court Skopje) and the Supreme Court. and the Basic Court Skopje I, now called the Possible abuse of the random court case Criminal Court Skopje). assignment system was first indicated in the A publicly available Ministry of Justice Priebe reports of the experts’ group contracted report (November 2017)161 concludes that by the European Commission. However, the the obligation for electronic recording of all problem was not taken seriously by the bodies cases and their random assignment to judges responsible, and it was even longer before had been grossly disregarded. Court cases adequate measures were put in place to were recorded by expert associates, who address it. decided when and which court panels would Judicial authorities have yet to tackle the be assigned to work on specific cases; annual abuses, improve public trust in the judiciary, work schedules were changed multiple times or support North Macedonia’s Euro-Atlantic over the course of the year; some judges had aspirations and accession to the European been excluded from the system without a Union. written decision to that effect; and a series of other forms of system override had taken 2. INTRODUCTION place. For a long time, the bodies controlling Between the Republic of North Macedonia’s ACCMIS took no measures to detect and prevent independence in 1991 and until adoption these abuses. The first attempt to do so was of the Law on Management of Case Flow in by the Council on Establishment of Facts, Courts in 2010, assignment of court cases which initiated a procedure for establishing was performed manually. In that period, the judiciary identified a need for legal regulation 161 Report from insight performed into functionality of the information system and supervision performed on of court case management in order to address implementation of provisions from the Court Rules of problems related to paper-based record- Procedure at the courts, Ministry of Justice, available keeping, and possible abuses in the manual at: https://www.pravda.gov.mk/Upload/Documents assignment of court cases. /%D0%90%D0%9A%D0%9C%D0%98%D0%A1 The automated court case management %20%D0%B8%D0%B7%D0%B2%D0%B5%D1%88% D1%82%D0%B0%D1%98.pdf?fbclid=IwAR29Up43ut2 information system was designed one year CLnYiZqjfqN6pelrRIN5sw8ZCgtC5biijXIfyGfdQLiwipvk responsibility with one judge and one court 3. FINDINGS OF INTERNATIONAL AND president, but faced obstruction by the then NATIONAL REPORTS President of the Supreme Court. Nevertheless, it still managed to initiate several procedures before it was abolished with the adoption of 3.1. Conclusions from the report of the senior the law of January 11, 2018.162 experts’ group led by Priebe (2015 and 2017) The public learned about the problems with Although solid legislation governs court case ACCMIS after the Priebe report was published management and procedure and the mandatory use in June 2015.163 The problem had still not been of ACCMIS in the assignment of court cases, that resolved by the time of the second Priebe did not prevent some high judicial officials (court Report in 2017, which contained further details presidents) - as in the case of the Supreme Court of the methods used to abuse the system.164 and the Basic Criminal Court in Skopje - finding Three years ago North Macedonia was ways to override ACCMIS and abuse the system by assessed by the European Commission as allowing manual assignment of some court cases. subject to “state capture”. However, the two This started in January 2013 and continued until last two country reports (2018 and 2019) mid-September 2017. have noted a certain amount of progress The first Priebe report in 2015165 underlined the in implementing urgent reform priorities, need for the Judicial Council to tackle the problem, including that of the justice system. and recommended that the rules on electronic assignment of cases must be strictly complied Recommendations put forward under with. Any exceptions must be clear and predictable, Chapter 23 of the EC’s 2019 country report and should not jeopardize the principle for which are aimed at continued implementation of the system was established. Compliance with the the Strategy on Justice System Reform, rules should be regularly assessed by the Judicial giving priority to the human resource Council and assessment reports must be regularly development strategy and improvements to published and made publicly available. The principle ACCMIS. This means there is still a need for of random case assignment should not detract continued efforts to eliminate the risks or from the need to ensure greater specialization of perception of political interference on the judges.166 judiciary. The emphasis is on the Judicial The problem with ACCMIS was not resolved by Council’s role and the need for it to become the time of the second Priebe report.167 It reiterated more efficient in order to protect judges the issue and provided a detailed explanation of from external or internal pressures. the method in which cases are unlawfully assigned. Judges considered to be untrustworthy were transferred to other court departments (e.g., from criminal to civil cases), which appears to have 162 Law on Revoking the Law on the Council on Estab- happened at the Basic Court Skopje I. In addition, lishment of Facts and Initiation of Procedure for cases were not assigned to judges who were on Establishment of Responsibility of Judges, “Official Gazette of RM”, no. 11/2018 163 The former Yugoslav Republic of Macedonia: Recom- 165 The former Yugoslav Republic of Macedonia: Recommen- mendations of the Senior Experts’ Group on systemic dations of the Senior Experts’ Group on systemic Rule of Rule of Law issues relating to the communications Law issues relating to the communications interception interception revealed in Spring 2015, available at: revealed in Spring 2015, available at: https://ec.euro- https://ec.europa.eu/neighbourhood-enlarge- pa.eu/neighbourhood-enlargement/sites/near/files/ ment/sites/near/files/news_corner/news/news- news_corner/news/news-files/20150619_recommenda- files/20150619_recommendations_of_the_sen- tions_of_the_senior_experts_group.pdf ior_experts_group.pdf 166 Ibid, pg. 10, 11 and 12 164 The former Yugoslav Republic of Macedonia: Assess- 167 The former Yugoslav Republic of Macedonia: Assessment ment and recommendations of the Senior Experts’ and recommendations of the Senior Experts’ Group on Group on systemic Rule of Law issues 2017, available systemic Rule of Law issues 2017, available at: https:// at: https://ec.europa.eu/neighbourhood-enlarge- ec.europa.eu/neighbourhood-enlargement/sites/near/ ment/sites/near/files/2017.09.14_seg_report_on_ files/2017.09.14_seg_report_on_systemic_rol_issues_for_ systemic_rol_issues_for_publication.pdf publication.pdf Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police | 101

leave or otherwise unavailable. There are developed at all, although the acting president indications that some judges were deliberately of the court had established the working group unavailable at the time when sensitive cases on case flow management. The procedure for were assigned, because they wanted to avoid the adoption of the annual court schedules having to hear them. The differing treatment was not complied with, while annual schedules of cases under the old Law on Criminal for 2016 and 2017 were often changed beyond Proceedings and the new law adopted in 2013, what was allowed. Specific cases were re- and the fact that the system was overburdened assigned from one judge to another. Several when more people were granted access to it, criminal panels were formed, and the selection facilitated the manipulation. of judges to be automatically assigned court Although the system was supposed to cases had been limited. record any interference, no adequate audit According to a notification by the acting has taken place. Neither the Judicial Council court president, there had also been manual nor the Supreme Court, which could both assignment of court cases. Automated have issued orders for audits, carried them assignment had not been used for court out. Their aim should be to establish proof departments handling adult criminals (K) of any interference, and they should not be and organized crime cases (KOK), and the subject to political influence. When necessary, parameters for automated assignment were international institutions or experts should be not in place. The intake officer had assigned involved.168 their own expert associate (not a judge) to The comprehensive audit recommended carry out the selection of judges for criminal in both Priebe Reports was not conducted. panels in particular cases. From the launch of The Council on Establishment of Facts at the ACCMIS right up until the audit was carried out, Supreme Court did launch an initial audit but court cases from 14 intake registries had been it was not concluded by the time the body was manually assigned. abolished in January 2018. In 860 cases, his court had not assigned a judge, which brings into question the accuracy 3.2. The findings of the working group at the of the data presented in monthly and annual Ministry of Justice (2017) reports on court and judicial performance. By the end of 2017 the Ministry of Justice The court administration had kept only had formed a working group comprised of hard copy intake registries for cases. Minutes seven members, and tasked it with monitoring had not been finalized annually and empty log ACCMIS’s operation. It also ensured provisions numbers were kept, so that it was impossible under the Law on Courts, Law on Management to find out which case was listed under a given of Court Case Flow and the Court Rules of log number. The same thing happened with the Procedure were being met.169 electronic intake registry. The Ministry of Justice’s working group At the Skopje Court of Appeal, court cases found a series of weaknesses. In particular, were assigned once per day. ACCMIS had been Basic Court Skopje I had not adopted its annual implemented and was regularly used, except plans on case flow management, reduction for court administration. However, even at this of backlog and delays in case management court there were several instances in which (except in the year 2013). Internal procedures the annual work schedule was changed, albeit on case flow management were never drafted in compliance with the law, and a large number and annual plans for that purpose were not of requests for recusal (around 200) were made on legal grounds. 168 Ibid, pg. 5. The Supreme Court of the Republic of North 169 Report from insight performed into functionality of Macedonia also ignored its obligations. This the information system and supervision on implementation of provisions under the Court Rules of court had not formed a working group on case Procedures at the courts, available at: http://www. flow management. New annual work schedules pravda.gov.mk/toc1/407 102 | Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police

were adopted several times during the year. In early 2017, the abuse of ACCMIS was duly Judges’ specialisms were not respected. Often, noted in the Special Prosecution Office’s report judges were reassigned to a different criminal about procedures related to their work, with an trial without adequate justification. In 2017, indication of names of the judges concerned,170 the court schedule was changed nine times, but the Judicial Council ignored these remarks mainly to influence the composition of judicial and insisted it was not competent to act upon panels, which triggered manual assignment of the reports. cases so that their cases were assigned to the desired judges. The number of judge recusals 3.3. The findings of the supervision was high, and automated assignment of a commission at the Ministry of Justice (2019) small number of cases had taken place several times in the course of a single day, contrary to The Ministry of Justice (in compliance with the rules. the Court Rules of Procedure and its work plan The working group concluded there for the period February-May 2019) surveyed was inconsistency in the way the Law on eight courts across the country and presented Management of Court Case Flow and the Court its findings in the bi-annual report published Rules of Procedure were applied, because in July 2019, which is publicly available.171 ACCMIS had not been used for its intended This report concluded that all courts purpose. Certain provisions in legal regulations needed to urgently upgrade their ICT equipment had been abused in order to make frequent and capacity in order to comply with their changes to annual schedules and ignore legal obligations on court case management judges’ specialisms. through ACCMIS. The report emphasised that the system Based on these findings, the Commission was not being used to make audio recordings planned measures to address the situation: of court hearings, scan incoming documents working groups should be formed, and tasked or back them up. At some courts, the number with case flow management and case of anonymized decisions uploaded onto the processing to comply with legal competences, website is significantly lower than the number in order to ensure full use of ACCMIS at all of decisions taken, which means that not all courts; a body on the standardization of have been published. procedures should be established at the The report also established the need for Supreme Court and hold regular sessions; at continuous training of IT specialists and other the same time, controls by higher-instance court staff. courts should be strengthened in order to Some courts with extensive jurisdiction do ensure the Court Rules of Procedure, Law on not have court administrators. The courts had Courts and Law on the Judicial Council were not formed departments on case law (except followed. for the Administrative Court). Some courts are facing a shortage of judges because they have The findings of this report essentially been seconded to the courts in Skopje. confirm that the automated court case Registries for all types of cases have been management information system was installed at the Administrative Court and Higher unlawfully manipulated, as the Priebe Administrative Court, as well as the Basic Civil reports set out. The Ministry of Justice’s Court and Basic Criminal Court in Skopje. working group is very clear: it amounts to explicit evidence that ACCMIS had been purposely abused by violating the legal 170 Press releases of the Special Prosecution Office from norms that govern court case management. January 2017, March 2017 and November 2017 171 Minutes from supervision of the functionality of the Automated Court Case Management Information System (ACCMIS) at the courts, available at: http:// www.pravda.gov.mk/vest/2983 Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police | 103

The recommendations made by the At a session held in April 2016, information supervision commission are aimed at optimizing was shared about the formation of the working ACCMIS, adjusting it to the needs of individual group on improvements to ACCMIS, which courts, and ensuring intake registries are kept. included judges and members of the Council,174 It also recommended improving the facilities but there was no information on any of the for audio recording, publishing anonymized working group’s activities. court decisions, regular ICT training for staff, In November 2017, the Judicial Council and increasing the role of the Judicial Council reviewed reports about the operation of the in monitoring performance. courts in the third quarter of the year, and discussed cases at some courts that had been 3.4. Findings from monitoring of the Judicial incorrectly recorded. A check was proposed Council to see whether this error could be fixed and The Institute for Human Rights has whether action had been taken to correct it, The Judicial Council has not publicly monitored the work of the Judicial Council but there was no follow-up.175 discussed the abuse of ACCMIS, even for more than four years by attending public when it reviewed quarterly reports on sessions, examining its website and submitting performance of the courts. The coordinators After the Ministry of Justice presented its freedom of information requests. Some failings (members of the Council responsible for report, the Judicial Council did not engage in the use of ACCMIS were noted as early as monitoring the performance of individual in meaningful debate on its findings. courts) for the Basic Court Skopje 1 2015, but the Judicial Council did not act upon Only in March 2018 was the report put on them. For example, the Administrative Court in Skopje, Skopje Court of Appeal and the agenda, together with items about Supreme Court did not report on problems had not recorded any changes to cases since the appointment of judges and court 172 with ACCMIS. 2014. presidents. At a session held in October 2015,173 one member of the Judicial Council requested the formation of a standing committee that would carry out oversight of ACCMIS work, bearing in It was emphasised that the Ministry of mind the reform priorities and concerns raised Justice’s report about ACCMIS abuse provided by the public about case assignment. However, evidence of the manual rigging of case a majority of Council members disagreed, assignment. But this was only discussed in the saying they did not have the required authority. context of the possibility that some candidates Because these irregularities had not been for President of the Skopje Court of Appeal had established during visits to the courts, the not been properly evaluated, because they Council decided to wait for changes to ACCMIS were unable to fully resolve cases. It was that would allow further insight into the therefore proposed to organize an extraordinary system. evaluation of the candidates, which caused heated exchanges among members of the

172 Minutes from attendance at session held by 174 Press release from 223rd session held on April 21 the Judicial Council of RM, Institute for Human 2016. Rights, September 16 2015, available at: http:// 175 Minutes from attendance at session held by ihr.org.mk/uploads/%D0%97%D0%B0%D0%B- the Judicial Council of RM, Institute for Human F%D0%B8%D1%81%D0%B- Rights, November 8 2017, available at: http:// D%D0%B8%D1%86%D0%B8%20 ihr.org.mk/uploads/%D0%97%D0%B0%D0%B- %D0%A1%D0%A1%D0%A0%D0%9C%202015-2016/ F%D0%B8%D1%81%D0%B- Zapisnik%20od%20sednica%20na%20SSRM%20 D%D0%B8%D1%86%D0%B8%20 16.9.2015.pdf %D0%A1%D0%A1%D0%A0%D0%9C%20 173 Minutes from attendance at session held by 2015-2016/%D0%97%D0%B0%D0%B- the Judicial Council of RM, Institute for Human F%D0%B8%D1%81%D0%B- Rights, October 13 2015, available at: http:// D%D0%B8%D1%86%D0%B8%20 ihr.org.mk/uploads/%D0%97%D0%B0%D0%B- 2016-2017/%D0%97%D0%B0%D0%B- F%D0%B8%D1%81%D0%B- F%D0%B8%D1%81%D0%BD%D0%B8%D0%- D%D0%B8%D1%86%D0%B8%20 BA%20%D0%BE%D0%B4%20 %D0%A1%D0%A1%D0%A0%D0%9C%202015-2016/ %D1%81%D0%B5%D0%B4%D0%B- Zapisnik%20od%20sednica%20na%20SSRM%20 D%D0%B8%D1%86%D0%B0%20%D0%BD%D0%B0%20- 13.10.2015.pdf %D1%81%D1%81%D1%80%D0%BC%208.11.2017.pdf 104 | Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police

Judicial Council. The rest of the session was 4. CONCLUSIONS AND closed to the public in order to consider the RECOMMENDATIONS agenda item on the Ministry of Justice’s ACCMIS report. However, the Council subsequently ÂÂOur assessment of the ACCMIS situation is based discussed agenda items that should have on analysis of the legal framework relating the been open to the public.176 possibility for its abuse, findings from two reports The final review of the ACCMIS report took of the senior experts’ group led by R. Priebe, the place behind closed doors. The explanation European Commission’s country progress reports, was that although some matters had already two reports by the Ministry of Justice, direct been discussed in public, maintaining the monitoring at the Judicial Council’s public sessions dignity and integrity of judges was a priority by the Institute for Human Rights, and investigative for the Judicial Council, and the conclusions journalism by BIRN, all of which provided a clear would be made publicly available. This did not picture of the abuse. happen.177 ÂÂACCMIS is installed at all 34 courts in the state The Judicial Council then formed a in order to facilitate their work of the courts and commission that should have carried out improve their efficiency. The system is open to investigations into ACCMIS’s functionality, but abuse by wrongdoers. when it reported in 2019 the Council said that ÂÂExcept for monitoring by the Judicial Council, additional checks needed to be made in order there was no supervision of lower courts by higher to ensure it had all the facts. Subsequently, courts. Court presidents also failed to keep abreast the term of office of number of the commission of the situation. Their unprofessional attitude members expired, so no information is directly influenced the failure to record cases available about whether the report’s findings accurately, and consequently court performance were pursued.178 assessments. After the president of the Basic Criminal ÂÂThe judicial system has been damaged and Court in Skopje was indicted, the Judicial needs to be rebuilt. There is an obvious need for Council decided to suspend him from the office more energetic action. One has to ask whether of court president,179 and in September 2019 it dismissal alone will be enough, or whether some also dismissed the President of the Supreme judges should face criminal proceedings. Court.180 This decision is still not enforceable ÂÂDistrust of the judiciary among the public is and is not publicly available, so the reasons for high, but the most serious result of the abuse has it remain unknown. Later, dismissal decisions been the price paid by citizens whose rights have were taken against two judges at the Supreme been violated. Court, but they too were unpublished. An ÂÂThe damage done was facilitated by the Judicial indictment was filed against the former Council, which failed to protect the independence president of the Basic Court Skopje 1 before and autonomy of the judiciary. the Veles Criminal Court on the grounds of ÂÂThe current Judicial Council has an obligation having overstepped the boundaries of public to continue monitoring the situation. However, office. This case is still in its early stages. they must hold those responsible for the abuse of ACCMIS accountable. 176 Ibid. 177 Monitoring report on performance of the Judicial Council of RM in the period December 2017 – March 2018, available at: http://ihr.org.mk/uploads/IHR%20 -%20Izvestaj%2005%20MAK%20(web).pdf?fbclid=I- wAR3yDJIui7v-UT5TDjByG2-wZ8VuPz2ZOKHyqKJLfMB- piNhfvj0PNUrrkrA 178 Press release from 297th session of the Judicial Council of RM held on 7.2.2019. 179 Press release from 315th session of the Judicial Council of RM held on 17.7.2019. 180 Press release from 217th session of the Judicial Council of RM held on 10.9.2019. Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police | 105

CONCLUSIONS RECOMMENDATIONS ÂÂACCMIS was not regularly monitored by the Judicial Council, the Supreme Court and the ÂÂCompliance should be regularly Ministry of Justice; assessed by the Judicial Council, and the ÂÂIt did not take urgent action to prevent assessment reports should be regularly abuse of the system by court presidents; published and made publicly available; ÂÂThere were long delays in establishing who ÂÂProcedures initiated before the Judicial was responsible; Council and related to ACCMIS abuse need ÂÂNot all those responsible have been to continue in order to ensure they are identified; completed rapidly; ÂÂACCMIS is not fit for purpose; ÂÂMandatory and timely monitoring of ÂÂICT staff are inadequately trained; ACCMIS needs to be conducted by all the ÂÂThere is not enough interoperability with authorized bodies; other bodies; ÂÂAudio recording should be enabled; ÂÂThere is a lack of expert staff (judges, expert ÂÂIntake registries should be managed associates and court administrators). and kept by the court administration; ÂÂInheritance and domestic violence cases should also be subject to automated assignment; ÂÂA legal framework should be adopted to ensure better communication and data exchange with other organizations; ÂÂAnonymized court decisions need to be published regularly; ÂÂICT training should be given to staff; ÂÂExpert staff, such as court administrators, judges and expert associates, should be recruited. 106 | Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police

THE (AB)USE OF DETENTION Author: Darko Avramovski

1. INTRODUCTION measures. The most importance is assigned to those under Article 5, paragraph 3, whereby Detention is the most serious step detained persons are entitled to be promptly the state can take to ensure the smooth brought before the court, to be tried within passage of criminal proceedings. It is a reasonable time and to be released during intended to secure the presence of suspects court trial, which could be conditional on other or defendants (depending on the stage guarantees that the person will not obstruct of criminal proceedings) and to make it the process. Furthermore, the ECHR provides impossible for them to tamper with evidence, a general guideline for national legislations influence witnesses and, in general, obstruct about the legal grounds for detention. the investigation, while also stopping them In the spirit of the ECHR, North Macedonia’s from committing new criminal offenses. Law on Criminal Proceedings (LCP) regulates the legal grounds for issuing detention orders, Legal provisions on the basis of which stipulating that they should be imposed for people can be detained stipulate the the shortest possible duration and only when existence of a reasonable suspicion that other precautionary measures would not they had committed the criminal offense. have the desired effect. At the same time, This must be combined with reasonable the law obliges all competent authorities to suspicion that the person: ex officio pay due attention to the length of - might abscond; detention and the existence of grounds and - might influence witnesses and obstruct circumstances that provide the basis for the investigation activities; or measure to be imposed, so that detention - might repeat the criminal offense or orders may be revoked as soon as the reasons commit another criminal offense. for them cease to apply. LCP stipulates that detention orders should include a rationale that explains the reasonable suspicion for As such, detention is included in the the existence of reasons for the detention, catalogue of legal grounds under Article 5 bearing in mind the details of the case and (Right to Liberty and Security) of the European personal characteristics of the person, as well Convention of Human Rights (ECHR) according as an explanation of why other precautionary to which a person can be deprived of liberty. measures would not have the desired effect. This gives legitimacy to detention imposed in Based on these provisions, detention must criminal proceedings, and allows people to be be lawful and justified, and they appear in deprived of liberty without an enforceable court the context of the European Court of Human verdict - but only when special circumstances Rights (ECtHR)’s case law. According to this, in the criminal case allow it and when detention the lawfulness of detention is assessed in is imposed in a fair way, strictly defined in strictly formal terms, by assessing compliance law. The ECHR provides basic safeguards that with the procedure on the issue of detention must be in place when imposing detention orders, the existence of legal grounds for Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police | 107

issuing them, the relevant legal authority of 2. A STATISTICAL OVERVIEW ON the courts issuing them, etc. Clear and detailed THE USE OF DETENTION IN NORTH rationales in detention decisions actually MACEDONIA provide the only basis for the ECtHR to establish the justification for the detention imposed. For The use of detention in North Macedonia this reason, and in order to avoid the possible has been criticized on several occasions by violation of fundamental human rights, as both domestic and international organizations anticipated under the ECHR (in particular those – not only as a hidden punishment, but also under Article 5), these decisions should be in the context of poor conditions in prisons supported by adequate arguments and should and other detention facilities, and the need contain individual rationales concerning the for more consideration from courts when they suspect or defendant in each case. approve these measures. Several EU, Council of Given that detention is the most rigorous Europe and UN reports underline that the state precautionary measure that can be issued and must reduce the use of detention and ensure enforced, and that it deprives people of their adequate conditions at detention facilities fundamental human right to liberty without an in order to avoid additional and unnecessary enforceable court verdict, many states and suffering. In this context, the Law on Probation international organizations are taking steps was adopted in 2015 and came into effect to monitor and evaluate the adequate use of in 2016. Its main purpose is to strengthen detention in order to prevent it being used as a and increase the use of alternative and non- form of hidden punishment (i.e. to prevent the custodial measures. So far, however, the law violation of the presumption of innocence). In has not been properly implemented and the use this context, the European Union, in coopera- of non-custodial measures remains marginal; tion with the Council of Europe, has developed alternative measures (with the exception of a methodology with a series of indicators to probation) are, in practice, not used. monitor and evaluate the adequate use of de- In North Macedonia precautionary measures tention in order to ensure the maximum pro- are used in less than 15% of cases of tection of human rights.181 These are divided investigation or indictment,182 which is roughly into quantitative indicators, which are related the same figure as the average in Council of to statistical indicators provided by informa- Europe member states.183 tion holders (such as courts and prosecution offices) and which concern the share of deten- Of all the measures requested by the tion orders in correlation with the total number prosecution service, more than 90% of cases, defendants or suspects; the use of concern the deprivation of liberty (i.e. other precautionary measures; and qualita- detention and house arrest. Together tive indicators based on ECtHR case law. Al- with the courts’ high approval rate for most without exception, this is related to legal these measures (above 95%), this gives grounds for detention, compliance with the rise to concerns about the justified use procedure for issue of detention orders, and of detention to the detriment of other the court’s due attention to the protection of precautionary measures. defendants or suspects’ fundamental human rights, in correlation with the public interest On average, the proportion of detention and the smooth passage of criminal proceed- orders is slightly higher for the Prosecution ings. Office against Organized Crime and Corruption 181 According to the methodology and indicators defined (POOCC). Precautionary measures requested in the manual “Pre-Trial Detention Assessment Tool”, developed as part of the project “Partnership 182 Annual reports of the public prosecution offices in for Good Governance”, co-funded by the European the Republic of North Macedonia, available at: http:// Union and the Council of Europe, available at: jorm.gov.mk/category/dokumenti/izvestai/ https://rm.coe.int/pre-trial-detention-assessment- 183 World Prison Brief https://www.prisonstudies.org/ tool/168075ae06 highest-to-lowest/pre-trial-detainees 108 | Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police

between 2015 and 2018, on average, cover the same year investigations were opened into 40% of the people under investigation or 2,477 people, which resulted in 733 acts of indictment, which is significantly higher than indictments and 4,028 indictment proposals187, other prosecution offices where the rate together accounting for a total of 7,716 persons stands at 15%.184 More than 90% of POOCC that could be covered by detention orders. measures involve detention, while only 10% of Based on these absolute figures, the share all measures are for house arrest.185 However, of detention orders issued (to 457 people) as part of its annual reports, the Public accounts for 1.5% when applying the PPRNM Prosecution provides its own statistics on methodology (calculated in accordance with detention measures, which show a significantly the total number of criminal reports adopted lower frequency of detention (around 1.5% of in the calendar year) or 6% when applying the cases, or several times less, depending on the Council of Europe/ EU methodology. period of calculation). Analysis of 2017 statistical data for POOCC This difference is mainly due to the shows that this prosecution office acted upon methodology used by prosecution offices, which a total of 408 reports, but investigations were takes the total number of reported individuals opened into only 192 people, and detention as its reference value. These include dropped orders were issued for 95. According to the criminal reports and those not taken up in the PPRNM methodology, the share of detention current year, reports involving children, those orders for this prosecution office stands at involving legal entities and other categories 23.3% of all cases, while the relevant share where precautionary measures, especially calculated using the Council of Europe/EU detention, are inappropriate. The sample methodology accounts for 49.5%. If competent used by PPRNM (the total number of reported institutions and especially PPRNM also collect individuals) is therefore an inadequate basis and process other data which could be broken for comparison. down by criminal offense, age group of the The calculations for this analysis exclude perpetrators, procedure duration and outcome, criminal reports that were dropped or closed, motions for detention after indictments are penal orders, plea settlements in pre-trial filed, etc., the difference between the shares proceedings, and children. This is because obtained under these two methodologies detention orders cannot be issued in these could be even greater. proceedings, or at this stage.186 Our sample includes only relevant and applicable cases, i.e. the number of initiated investigations together with the number of indictments filed against adults. For comparison, an analysis of relevant figures for 2017 shows that criminal reports were submitted against 31,511 persons, but in

184 In 2017, total of 306 persons were reported to POOCC and custodial measures were imposed for 127 of them (41.5%), while detention orders were issued for 95 of the total of 192 persons under investigation (49.5%). 185 2015, 2016, 2017 and 2018 annual reports of the 187 There are two types of indictments in Macedonia: Prosecution Office against Organized Crime and acts of indictment, and indictment proposals. The Corruption, which are not publicly available. first is filed by the prosecution in the cases of more 186 According to the methodology and indicators defined serious crimes and has to be approved by a special in the manual “Pre-Trial Detention Assessment council of the court before it reaches the trial council Tool”, developed as part of the project “Partnership of the same court. The latter is an indictment filed for Good Governance”, co-funded by the European in cases of lesser crimes, and initiates a summary Union and the Council of Europe, available at: criminal proceeding - basically a shortened https://rm.coe.int/pre-trial-detention-assessment- procedure, which lacks an investigative phase and tool/168075ae06 other elements. Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police | 109

Overview of relevant shares of motion for Expressed in absolute figures, in the period detention orders submitted by POOCC and other 2015-2017 criminal reports on abuse of public prosecution office office and duty were submitted against a 100 total of 376 people, but indictments (acts or proposals) were submitted for only 14 - and 83% detention orders were issued for only four. 78% In the context of these figures, on average, 80 motions for detention related to criminal offenses of corruption and abuse of public office and duty account for 0.5% of the total.188 60 Indictments filed (acts and proposals) related to criminal offences against public office (Chapter 41% 30 of the Criminal Code) 40 50% 50

20 13% 40

30 0 motions for detention share of detention orders orders (expressed as in correlation with other share in total number of precautionary measures 20 defendants)

POOCC 10 5% other prosecution office 0 Although this deviation from the average POOCC SPO - or more precisely, the high use of detention by POOCC – might be understandable, bearing On the other hand, the Special Prosecution in mind the nature and complexity of criminal Office - which was formed to prosecute criminal cases falling under this prosecution office’s offenses related to organized crime and high legal authority, what is particularly noticeable level corruption, because it was believed that is the equally high rate of approvals for regular prosecution offices, including POOCC, detention by the courts, irrespective of whether lacked the capacity to resolve these cases - these motions are submitted by POOCC or other used completely different statistics. First, the prosecution offices. number of indictments filed by SPO in relation to criminal offenses of corruption committed by senior public officials accounts for more 35% of all criminal reports processed than half of all indictments filed by the office. by POOCC concern criminal offenses In absolute figures, SPO’s indictments cover related to corruption and abuse of public office and duty, but less than 145 people in a total of 22 cases, of whom 85 5% of indictments are related to these are former or current public officials accused criminal offenses. of corruption in 14 cases led by the SPO. Although SPO has a smaller number of cases than POOCC, indictments (acts and proposals)

188 2015, 2016, 2017 and 2018 annual reports of the Prosecution Office against Organized Crime and Corruption, which are not publicly available. 110 | Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police

filed by SPO in 2017 covered 121 people,189 of indictments filed, but are also because of while the annual average of indictments (acts its efforts to minimize the impression that its and proposals) filed by POOCC in the period use of detention, and consequent abuse, is 2015-2018 involved 187 people.190 As regards excessive. Nevertheless, when these statistics detention measures, SPO has requested are compared to POOCC’s, particularly the detention for around 20% of people in its low percentage of initiated investigations cases (compared to 40% in the case of and cases of high-level corruption, there is a POOCC), and the court has approved only 25% trend of minimal use of detention when former of requested detention orders (compared to or current senior public officials appear as 95% in POOCC).191 defendants or suspects.

Comparative overview on use of detention orders 2.1. Legal grounds for the issue of detention by POOCC and SPO orders 100 95% On the legal grounds for issuing detention orders, which provide the basis for assessing whether detention measures are formally com- 80 pliant with the law (but not whether they are justified), Article 165 of LCP stipulates three legal grounds: when the person reasonably suspicted 60 of having committed a criminal offense has absconded, or there is reasonable suspicion 40% he/she might do so; 40 when there is reasonable suspicion that the person might obstruct the investigation, 25% 20% tamper with evidence or influence witnesses; 20 and when there are specific circumstances that refer to the risk of the person repeating 0 the offense, pursung it or commiting a new motions for detention share of approved order (expressed as motions for detention criminal offense. share in total number of order The separate legal ground under Article defendants) 165 concerns situations such as: 1) when the POOCC defendant avoids attending the main court SPO hearing; and 2) when the defendant is absent, although the court has made two attempts to ensure his/her presence by means of a These statistics are partially due to the subpoena. Nevertheless, these cases do not obstructions faced by SPO in the initial stages amount to separate grounds for issuing a of its operation and the relatively smaller scope detention order, but rather a formal distinction between legal grounds, because the situation 189 http://sudskodosie.all4fairtrials.org.mk 190 Data are calculated as a mathematical average described under Article 165, paragraph 1, for the period 2015 - 2018 from figures indicated item 4 is already covered by the definition of in 2015, 2016, 2017 and 2018 annual reports of the reasonable suspicion that the person might Prosecution Office against Organized Crime and Corruption and do not reflect the actual scope of flee the country (as stipulated in Article 165, POOCC’s work per year. On an annual level, numbers paragraph 1, item 1). At the same time, item vary from 106 indictments in 2016 to 288 indictments in 2018. 4 under paragraph 1 refers to the issue of 191 Numbers are expressed as shares due to substantial detention orders after the indictment entered differences in absolute figures (in the case of SPO, into legal effect, i.e. after the investigation is motions for detention concern 20 people). Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police | 111

completed, and with a maximum duration of reoffending.193 In other cases, detention orders 30 days, while the first three circumstances are issued solely on the grounds of flight risk, could be used as grounds to impose or extend or a combination of flight risk and another detention at any stage of criminal proceedings. reason. In almost 1% of cases detention is imposed on other grounds. When it comes to 2.2. Based on the above, several conditions extending detention, the grounds are similar.194 must be in place for detention order to be lawful: 3. DURATION OF DETENTION ORDERS reasonable suspicion that the defendant has committed the criminal offense he/she is When a freedom of information request charged with; was submitted about the length of detention, at least one of the legal grounds for the prosecution offices only disclosed the data for issue of detention order is in place, whereby the years 2015 and 2016 and only for detention each legal ground should be justified with orders requested by POOCC. In the vast majority separate reasons and circumstances that give of cases detention orders were extended, rise to reasonable suspicion that provides a which means that in most cases they lasted basis for detention, and each legal ground for more than one month. should be considered separately; and For POOCC, in the majority of cases deten- the court has objectively assessed that tion lasted for more than 60 days, and in a low- a combination of several non-custodial er but still significant share of cases it lasted measures to secure the person’s presence and over 90 days. In some, it exceeded 180. the smooth course of criminal proceedings As shown in the charts below, in 2015 would not have the desired effect. detention lasted for more than 60 days in Article 163 of LCP regulates house arrest as almost 70% of cases (140 of a total of 201 a less severe alternative to prison detention, people issued with detention orders). In although it still deprives people of their liberty 2016 it accounted for more than 75% of without a sentence. LCP stipulates the same cases (72 of a total of 96). conditions as those set out above on prison detention, but fails to say when detention could be replaced with house arrest, leaving There is insufficient data about the stage it to the courts to decide which measure to at which detention was extended (whether impose. The fact that identical conditions are during the investigation or after the indictment imposed in both suggests the two measures was filed) which would allow further monitoring are equally weighted, and the ECtHR’s case law of the length of detention. Article 171 of also equates them, at least in terms of how LCP stipulates that detention orders at the 192 they relate to Article 5 of the ECHR. investigation stage should have a maximum duration of 30 days, which can be extended A high percentage (more than 70%) of for another 60 days by the court’s judicial detention orders are issued on the basis of panel. In exceptional circumstances (when the all three grounds: risk of absconding; risk of the person obstructing the investigation, 193 Basic Court Skopje 1, Skopje, Statistics on is- suance of precautionary custodial measures in tampering with evidence or influencing 2015, available at: http://www.sud.mk/wps/wcm/ witnesses; and the risk of the defendant connect/osskopje1/a79b7f11-5c9a-4e0d-b2ff- bfcc875bf0db/Statistika+za+merki+za+obezbedu- vanje+prisustvo+204+i+2015.pdf?MOD=AJPERES&- CACHEID=ROOTWORKSPACE.Z18_L8CC1J41L088F0A1K- 8MT8K0AM5-a79b7f11-5c9a-4e0d-b2ff-bfc- c875bf0db-liVU7u6 192 Buzadji v. Moldova, application no. 23755/07; Mancini 194 Data obtained in response to the request submitted v. Italy, application no. 44955/98; Nikolova v. Bulgaria, under freedom of information laws, A. no. 03-941/2 application no. 40896/98; DaCosta Silva v. Spain, from the Public Prosecution of the Republic of North application no. 69966/01 Macedonia. 112 | Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police

criminal offense concerned attracts a prison 4. JUSTIFICATION FOR DETENTION sentence of at least four years), detention ORDERS could be extended for another 90 days. This means that the total duration of detention Although these statistics are relatively lim- in the investigation stage, including the time ited in terms of quantity and quality, and the from the person’s arrest until adoption of the methodology used by prosecution offices is decision, cannot be longer than 180 days. inadequate, we should point out another con- After this period the detained person must be cern: the justification of the length of deten- immediately released. tion. In 2015, detention orders were fast-tracked As can be seen from the detailed elabora- for 27 people, and for 22 people in 2016. They tion of the ECtHR’s case law, the court pays a were set for a maximum duration (stipulated lot of attention to the existence of adequate under Article 470 of LCP) of eight days after rationales in decisions on extending detention. the submission of the indictment proposal: the The ECtHR found that when approving consec- first trial hearing must take place by this time. utive extensions to detention, the courts are According to the same article, fast-tracked obliged to pay even greater attention and to detention indictments can be set for a maxi- provide new arguments that explain why de- mum of 60 days, but relevant data is not avail- tention could not be replaced with non-cus- able for this category of detention. todial measures in the later stages of criminal proceedings. The project team was informed Duration of detention orders in cases led by by the courts that their information system POOCC in 2015 (ACCMIS) does not enable data on detention 80 duration to be processed. This raises additional questions about the methods of data 70 collection and processing by institutions. The failure to collate as much detention-related 60 data as possible indicates the lack of awareness among authorities of the gravity of this 50 situation, and of criticisms about the use of detention. 40 Every year, more than 10% of the people for whom precautionary measures were requested 30 were subject to house arrest. This is about the same percentage as receive a non-custodial 20 measure.195 Nevertheless, partly because inadequate methodology is used to monitor and 10 evaluate the use of detention, prosecution of- fices196 and courts197 believe that criticism of 0 up to 30 31 to 60 61 to 90 91 to 180 180+ the excessive use of detention is exaggerated, days days days days days even though detention is used four times more frequently than other precautionary measures. Additionally, there is a high frequency of detention orders lasting more than 90 days, 195 Data obtained in response to the request submitted under freedom of information legislation, A. no. 03- i.e. 55% of the cases in 2015 (111 of a total 936/1 from the Public Prosecution of the Republic of of 201) and 30% of the cases in 2016 (29 of North Macedonia a total of 96). The public prosecution offices 196 2017 annual report of the Prosecution Office against Organized Crime and Corruption, pg. 18; 2018 annual said they did not have this data for 2017 and report of the Public Prosecution of the Republic of 2018, while the basic courts do not have any North Macedonia, pg. 15 information on the length and and extension 197 Basic Court Skopje 1, Skopje. Statistics on of detention. precautionary measures in 2015 and 2014, pg. 4 Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police | 113

The high proportion of detention orders, others v. Macedonia, shows there must be together with the large proportion issued on detailed and individual rationales for imposing the grounds of flight risk, suggest the Law on or extending detention. They cannot be in a Probation is not being properly implemented. brief or summary format (i.e. not general and Judges are mistrustful of non-custodial meas- abstract, or based on standard formulations) ures in their efforts to ensure suspects appear and the explanation of the grounds for issuing at court. detention orders - such as the gravity of the On the other hand, although they ac- offense, lack of personal property or permanent count for a small share of the total measures, residence, etc – should not be based on a non-custodial measures are still imposed. This template.199 raises the following questions: 5. Whether the use of non-custodial 5. COBWEB200 measures is justified, if judges believe they are ineffective; and This practice was confirmed in the case of 201 6. If their use is justified and they are Ramkovski v. Macedonia , which concerns effective, why are they not more widely the detention imposed on defendants in the used? case known to the Macedonian public as Cobweb. It is often cited by the public as an

5. CASE STUDIES THROUGH THE 199 Vasilkoski and others v. Republic of Macedonia, PRISM OF EUROPEAN COURT OF application no. 28169/08, available at: http:// biroescp.gov.mk/wp-content/uploads/2016/12/ HUMAN RIGHTS CASE LAW %D0%92%D0%90%D0%A1%D0%98%D0%9B%D0% 9A%D0%9E%D0%A1%D0%9A%D0%98-%D0%98- Although these statistics are indicative and %D0%94%D0%A0.-%D0%BF%D1%80%D0%BE%D1% show certain trends, they are still insufficiently 82%D0%B8%D0%B2-%D0%A0%D0%95%D0%9F%D 0%A3%D0%91%D0%9B%D0%98%D0%9A%D0%90- detailed and precise for specific conclusions %D0%9C%D0%90%D0%9A%D0%95%D0%94%D0%9E to be drawn. More research is needed on this %D0%9D%D0%98%D0%88%D0%90.pdf topic, as well as efforts to increase awareness 200 Cobweb formally began with a criminal investigation launched by investigative judge in December 2010, among institutions about the implementation and was preceded by tax inspections conducted by of systemic monitoring and evaluation of the PRO in November 2010. The criminal investigation charged 23 individuals and 10 legal entities with policies and regulations that govern detention. criminal association, tax evasion, money laundering, In this context, the ECtHR has assessed that embezzlement and abuse of public office and duty, detention is legal as long as it is imposed in under an indictment filed on May 24 2011. Legal entities accused of these criminal offenses included compliance with legislation, but it has often the media groups TV A1, TV A2 and Plus Production, found the inadequate explanation of courts’ which printed the newspapers Vreme, Koha e re and Spic which were identified at that time as critical of detention decisions problematic. In the case the government. Other defendants included owners, of Lind v. Russia, the ECtHR established that managers and editors at these media outlets. as long as the domestic courts act within the These actions, together with lack of transparency of the entire process, were why many domestic and framework of their legal authority detention international organizations expressed concerns orders cannot be considered unlawful, but it about media freedom, freedom of expression, and the abuse of power for political purposes. The assigns crucial importance to the reasons enforceable verdict in this case was adopted by listed in domestic courts’ decisions, on the the Skopje Court of Appeals on February 25 2013. basis of which the ECtHR is called upon to Nineteen people were sentenced to imprisonment, while three were acquitted. decide whether Article 5, paragraph 3 from 201 Ramkovski v. Macedonia, application no. 33566/11, ECHR has been violated.198 available at: http://biroescp.gov.mk/wp-content/ The ECtHR’s case law on assessing the uploads/2016/12/%D0%A0%D0%90%D0%9C%D0% 9A%D0%9E%D0%92%D0%A1%D0%9A%D0%98-%D0 justification for detention orders, established %BF%D1%80%D0%BE%D1%82%D0%B8%D0%B2- in several cases including Vasilkoski and %D0%A0%D0%95%D0%9F%D0%A3%D0%91%D0% 9B%D0%98%D0%9A%D0%90-%D0%9C%D0%90%D0% 198 Lind v. Russia, application no. 25664/05, 9A%D0%95%D0%94%D0%9E%D0%9D%D0%98%D0%8 available at: https://hudoc.echr.coe.int/ 8%D0%90-%D0%9F%D1%80%D0%B5%D1%81%D1%8 eng#{%22itemid%22:[%22001-124119%22]} 3%D0%B4%D0%B0.pdf 114 | Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police

example of the abuse of detention as a hidden only on threatened legal sanctions and the punishment, and a means of persecuting a gravity of the criminal offense of which these media outlet that at the time was critical of people were charged and which, according to the government. the ECtHR, cannot in its own right be grounds to impose detention. The additional reason Ramkovski v Macedonia, known as Cobweb for the ECtHR’s judgment is that several co- defendants in this case had fled the country, Nineteen people were detained during an which the domestic court assessed to have investigation into suspected tax evasion increased the flight risk of other defendants. and money laundering carried out by an The ECtHR again underlined that the behavior organized group. of other defendants should not be a decisive factor in imposing detention, and the personal Legal entities accused of these criminal circumstances of the suspect must always offenses included the media groups TV A1, be taken into account. As regards the risk of TV A2 and Plus Production, which printed reoffending, the ECtHR believed that the fact the newspapers Vreme, Koha e re and Spic, that defendants had committed the offense as which were identified as critical of the a group could in its own right be considered government,. Other defendants included sufficient to justify long periods of detention, owners, managers and editors at these while the fact that they still held the same jobs media outlets. at companies implicated in the case could be a relevant factor in imposing detention, but not the sole grounds for extending it. The ECtHR’s Initially, detention orders were issued on all judgement also made clear that the extension three grounds stipulated under LCP (flight risk, of detention beyond the previously defined the potential for reoffending and obstruct- period must be based on additional and more ing the investigation). After the indictment significant reasons, adequately supported was filed, detention was extended only on with evidence and explanations. the grounds of flight risk and the existence of special circumstances that indicate defendants might repeat the offense. In the course 6. LIQUIDATION of criminal proceedings, detention orders for The Liquidation case is similar to Cobweb: five people were replaced with house arrest, several people were accused of the abuse of while detention for one person was replaced office and public duty, offering and receiving with non-custodial measures. Nine people re- bribes, and the unlawful mediation and un- mained in detention for more than a year. A to- authorized disclosure of information and data tal of 20 people in the case were found guilty concerning witnesses, informers, undercov- in court, including all 19 people initially issued er police officers, advisors, experts, victims with detention orders. appearing as witnesses and people close to Acting upon this application, the ECtHR found a violation of Article 5 from ECHR them. What particularly attracted the attention because decisions on imposing and extending of the public is that the defendants included a detention, and subsequent decisions of the journalist who had been charged with the un- Appeal Courts, featured rationales with almost authorized disclosure of data related to a pro- identical formulations. Therefore the ECtHR tected witness in an article, but also that the assessed that the domestic courts neither defendants, who included judges, prosecutor demonstrated nor provided arguments for a and an attorney-at-law, had been detained for single specific fact justifying the detention an unusually long period of time: six months measures. More specifically, regarding the in detention, and later more than a year under flight risk which was the main legal ground for house arrest. extension of detention in this case, decisions taken by the domestic courts were based Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police | 115

Given detention is rarely imposed in cases at the time, the public raised concerns about related to the abuse of public office the abuse of detention. Non-government or- and duty, as well as the fact that the ganizations and experts also criticised the im- defendants again included a journalist plications for the violation of the presumption who was critical of the government and of innocence. had published an article to that effect, the public asked whether detention was 7. TWO MEMBERS OF THE POLITICAL being used as a hidden punishment and the PARTY LEVICA principle of the presumption of innocence had been violated. Another example concerns the case against All defendants in this case were found two members of the political party Levica. It in- guilty, but this year the case was returned volved their participation in protests organized for a retrial after the guilty verdict was by the so-called Colorful Revolution, and the revoked by the Supreme Court. demolition of the People’s Office of the Pres- ident of Republic of Macedonia, followed by Without prejudice to Liquidation’s presidential pardons for everyone involved in possible outcome at the ECtHR, an analysis the cases led by SPO. of the decisions about detention orders concludes that they include the same (or These two defendants were charged with similar) omissions, on the basis of which it “participation in a crowd that would a established the violation of Article 5 of the commit criminal offense”, which according ECHR in Vasilkoski and others v. Macedonia to LCP should be fast-tracked. However, and Ramkovski v. Macedonia (cited above). the defendants spent 45 days under These violations concern the use of summary house arrest that was later replaced by and formulaic rationales for decisions about non-custodial measures (confiscation of detention orders. In this case, too, the traveling documents and an obligation to domestic courts had given particular weight regularly appear at the court) - and even to the gravity of criminal offense for which these measures were later revoked. defendants are charged, as well as the fact that the criminal offense has been committed as a group, without assessing the personal This court process started in May 2016 characteristics of individual defendants and is still underway, as the Court of Appeal and rejecting other precautionary measures revoked the first-instance verdict acquitting instead of detention. In this case, the domestic the defendants of criminal charges and courts did not take into account the fact that ordered a retrial. During the retrial in November the defendants had no previous convictions 2019, the Skopje Criminal Court again and that their personal characteristics did not established that the public prosecution had suggest a possible flight risk. The court also failed to prove beyond reasonable doubt that a rejected the journalist’s application for release criminal offense had taken place and that the from detention on bail, as well as several defendants had committed it, again acquitting applications made on the basis of poor health. them of all charges. Although the decision Finally, after the first-instance verdict, motions to replace house arrest with non-custodial to replace detention with non-custodial measures and their subsequent cancellation measures were approved by the court on were welcomed by the public, it is hard to the basis of the same circumstances which see how house arrest could ever have been the same court had previously considered justifed. Moreover, in this case there was no insufficient to justify a non-custodial measure. change to the circumstances in which house Due to the lack of adequate and individu- arrest was initially approved, and the court’s al rationales in decisions on detention orders, decisions do not provide any indication of the the opaque process and the societal context 116 | Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police

defendants’ individual circumstances that 8. CASES LED BY THE SPECIAL would give rise to a flight risk or reoffending. PROSECUTOR’S OFFICE: A DIFFERENT Furthermore, the house arrests were PROCEDURE relatively long, especially bearing in mind that the criminal offense concerned was supposed The Special Prosecution Office was formed to be fast-tracked due to the short sentences after the so-called Przhino Agreement, which it attracts. was brokered between the four biggest political parties under the auspices of the European Union and was the result of perhaps In fact, the damage caused served as a North Macedonia’s biggest political crisis. reason for the delay of other court trials related to Colorful Revolution protests. This process started when the then leader They ultimately resulted in the withdrawal of the Opposition disclosed illegally of the charges, mainly because after the wiretapped conversations. Their contents amount of damage had been established, confirmed many public suspicions about it was found to justify only a misdemeanor the abuse of power for personal and rather than a criminal offense. political goals, mass interference by the executive in the functioning of courts and prosecution offices, and the organized It is legitimate to ask whether, in this case, and illegal interception of communications there is a reasonable suspicion that the peo- by the Administration for Security and ple under house arrest had committed any Counterintelligence at the Ministry of the Interior. criminal offense – given that the cost of the damage had not been clearly established and SPO was tasked with investigating this it was unclear whether it was a criminal matter wrongdoing by taking over cases which at all. These uncertainties make it hard to see the Public Prosecution of the Republic of how the flight risk could be quantified. North Macedonia was not thought to have For detention to be lawful and justified, there the capacity or willingness to resolve must be a reasonable suspicion that a criminal adequately. offense has been committed, together with the existence of at least one of the legal grounds to impose detention. Detention orders must As a result, the Special Prosecution Office set out these grounds in detail in the context was given complete autonomy, disposing of of the defendants’ individual circumstances, its own team of investigators and IT experts. together with an explanation of why other It paid special attention to transparency in measures to secure the defendants’ presence its operation and adequate enforcement of would be insufficient. The public suspicion LCP and ECHR provisions. Because of the was that the use of house arrest was designed public’s lack of trust in courts and prosecution to intimidate the defendants and other people offices, SPO took a new approach to public who participated in the protests – and that it communications whereby prosecutors and its amounted to political retaliation and abuse public relations department often informed of the courts by the executive. The two first- the public of the start of investigations and instance acquittal verdicts lend weight to of the actions being taken. This was done in this interpretation, and if they are confirmed accordance with the principles of secrecy for by the Court of Appeal the state would have certain aspects of pre-trial proceedings and to compensate the two defendants on the of the presumption of innocence. Intending grounds that they were unlawfully deprived to increase public trust in these institutions, of their liberty - a violation of Article 5 of the SPO applied a different approach to custodial ECHR. and property matters. It therefore often opted Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police | 117

for non-custodial measures in order to avoid practices for the issue and enforcement of the impression that it was being used for the detention orders, including the voluntary purposes of political retaliation. interpretation of legal provisions regulating them. An example is the Trust case, which SPO’s efforts to minimise the use of set a precedent for the interpretation of LCP detention were fully compliant with the provisions and exploited legal loopholes and presumption of innocence and with Article overlapping legal provisions from the Law on 5 from the ECHR, whereby a person’s liberty the Public Prosecution Office and the Law on should always be privileged, irrespective the Special Public Prosecution Office, which whether they are a suspect or a defendant. govern the autonomy of operation and the legal However, SPO faced active resistance authority to act before the Supreme Court. from other institutions, a lack of cooperation, and even obstruction by courts in the form In this case, the deadline for drafting the of a failure to schedule or hold trial hearings detention decision was not met, which or other procedures stipulated under LCP. amounted to an abuse of legal authority. As a result, the court did not approve many This period was used by the defendant to applications for detention. flee the country. Immediately afterwards, the then Chief State Prosecutor presented 9. TRUST202 the Supreme Court with an application for detention to be revoked. However, another facet of SPO’s operation implied a complete deviation from established Yet this case was the result of illegal

202 Trust was initiated by the SPO with an investigation wiretaps, and therefore fell under the launched in February 2017. It resulted in charges exclusive legal authority of SPO. Despite this, against three legal entities and three individuals. Defendants were charged with presenting fraudulent the Supreme Court admitted the application bids in 2011, which were subsequently awarded and revoked the detention order. The case was a contract with JSC Power Plants of Macedonia (ELEM) to the value of 17 million euros and thereby returned for repeated decisions and the judicial illegally profiteering. This case attracted the public’s panel revoked the detention order even though attention because the proceeds were so significant (the highest level under the Criminal Code), and throughout this period there was reasonable because it was among the rare cases in which the suspicion that the defendant was in hiding, defendants were not former or incumbent public officials, as well as being one of two cases that given his attorneys were also unaware of his implied the confiscation of assets. The first-instance whereabouts. Immediately after detention was verdict was issued in July 2018, and implied a guilty verdict for two individuals and two legal entities. revoked, the defendant returned to the country Another individual was acquitted and one indictment and attended the main hearings for this case. against a legal entity was withdrawn. The Basic Court issued prison sentences of six years for the He was found guilty. first defendant and three for the second, although Nonetheless, the blatant deviation from le- the criminal offense implied a jail term of at least five years, and the Criminal Code in effect at the gal frameworks, the Chief State Prosecutor’s time only allowed the sentence to be reduced below interference in SPO’s legal authority, the un- the minimum in cases of a guilty plea, which did not apply in this case. When the case was adjudicated on precedented decision by a public prosecutor appeal, the Parliament of RNM adopted amendments to apply for an application to review the lawful- to the Criminal Code that implied reduced sentences for this criminal offense (from at least five years to ness of detention, and the fact that detention at least four years imprisonment) and restored the was revoked when the defendant was unavail- old and vague definition on reduction of sentences below the minimum set out in law, giving the court able to the authorities are highly revealing. The discretion when making such decisions. The first- intention was to avoid putting him in detention. instance verdict was amended by the Court of Appeal and the defendants’ sentences were also reduced. The first defendant was sentenced to four years and eight months imprisonment , while the second was issued with a conditional sentence (release after two years and no further imprisonment, provided the person does not reoffend). Both legal entities had property confiscated to the value of 17 million euros. 118 | Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police

10. FORTRESS 2203 gave its opinion on the appeal. Although it is clear that the court assumed its decision would be appealed, the fact it anticipated Shortly afterwards the President granted a nonexistent future appeal and used this blanket pardons, and then expressly withdrew them, meaning that criminal to justify the postponement of detention is proceedings against all the defendants especially problematic. were terminated. After the pardons were withdrawn, the judicial panel rejected SPO’s This unprecedented situation enabled the repeated application for detention and defendants to flee the country. They are instead issued precautionary measures. still on the run. Acting on SPO’s appeal, the Skopje Court of Appeal issued detention orders. This is a violation of LCP provisions, which do not allow appeals against Court of Appeal Another case led by SPO and known as decisions. The All for Fair Trials coalition had Fortress 2 was the subject of similar abuse, made this clear in previous instances. In and the selective interpretation of LCP law, Court of Appeal decisions on issuing or provisions. It allowed two defendants to flee revoking detention orders have legal effect the country. This case involved deviation from and should be enforced. legal frameworks, but also from established In this regard, the Court of Appeal procedures in appeals lodged against interpretation that an appeal against a detention orders, and concerned the legal decision about a detention order postpones effect and enforceability of these decisions. its enforcement is inadequate. This is When criminal proceedings opened, the because, according to LCP, appeals against pre-trial judge approved detention for the detention order decisions do not postpone defendants. This was followed by an appeal at their enforcement: the person is taken into the Basic Criminal Court Skopje which resulted detention each time an order is issued, and in detention being replaced by house arrest. is released when their order is revoked on In an unprecedented decision, the Court of appeal. The same logic is applicable in the Appeal made clear that detention would not opposite situation: appeals against decisions become enforceable until the Supreme Court on revoking detention orders postpone their 203 The Fortress 2 case began with an indictment enforcement, which means that if the detainee proposal filed by SPO in November 2016 against seven is released, they must wait for the outcome of people employed by the Administration for Security and Counterintelligence (UBK), and concerned the the appeal and for the decision on revoking the illegal destruction of equipment and evidence for the detention order to be confirmed before they mass interception of communications by UBK. Given can be freed. the specific criminal offense is tried by a fas-tracked procedure, SPO requested detention for two of the defendants immediately after indictment. The case 11. CONCLUSIONS was completed one year later, in November 2017, with first-instance guilty verdicts for the defendants. In May 2018, the first-instance verdict was confirmed ÂÂBased on the statistics, it is clear that for all but one defendant and they were given authorities are aware of the gravity of conditional sentences, while court proceedings for the other were returned for reconsideration. detention measures: they are issued relatively This part of the case is still underway. It was one rarely, given how many people are under of the rare cases in which the indictment was not investigation or indictment. However, an made publicly available and the public were denied access to some court hearings. A particular type analysis of detention orders in cases related of precedent in this case were the blanket pardons to organized crime and corruption suggests granted by the then President, and their subsequent withdrawal, which happened when this court was detention is used more frequently. The already hearing evidence. This provoked debate about disproportionately high frequency of detention the legal consequences and the manner in which the to the detriment of other precautionary case would continue after the blanket pardons were withdrawn. measures is concerning, especially since this Blind Justice: To State Capture in North Macedonia Judiciary, Public Prosecution and Police | 119

year marks the third anniversary of the Law on applications in less than 15% of cases, but Probation. A combination of these and other more than 40% in POOCC. factors, such as the desire to demonstrate ÂÂAccording to ECtHR case law, which is set zero tolerance for organized crime, is the out in many cases including several against reason why judges prefer detention rather than the Republic of North Macedonia, the most other precautionary measures. However, in the important element in assessing justification of absence of thorough and detailed rationales, detention in the light of Article 5 from the ECHR sometimes the use of detention orders appear is the rationales provided by domestic courts to distort the presumption of innocence. explaining the individual circumstances that ÂÂDifferences have been noted between the make flight risk, obstructing the investigation actions taken by POOCC and SPO. In the case and reoffending more likely. of SPO, greater care is taken in applications ÂÂThe absence of individual rationales for precautionary measures and detention. indicating a need for detention, especially in a The courts take a different approach when tense political atmosphere and where human deciding applications submitted by the two rights are in jeopardy or previous practice prosecution offices. The share of approved suggests detention should not be used, will detention orders is significantly higher in the raise concerns about the abuse of detention case of POOCC compared to SPO (95% versus - and will inevitably lead to violation of the 25%).204 presumption of innocence, and consequently ÂÂGiven most detention applications the right to a fair and just trial. submitted by SPO concern former or incumbent high public officials, the low share of approved detention applications comes as no surprise, especially when factoring in previous actions on the part of prosecution offices and courts in such cases (less than 1% of motions for detention submitted by POOCC concern these officials).205 ÂÂIt could be concluded that prosecution offices tend not to submit detention applications for former or incumbent public officials, while courts are unwilling to approve them - even though, bearing in mind the nature of the criminal offenses of which these people are suspected or charged and their status and position in society, they are more likely to flee the country, obstruct the investigation or reoffend, and therefore a higher proportion of them are approved. The evidence for this can be seen in the statistics above, which show prosecution offices submitted detention

204 In absolute figures, SPO has submitted applications for detention or house arrest for 22 people, and detention was approved for six of them. 205 On an annual level, in the period 2015 to 2018 and in relation to Chapter 30 of the Criminal Code (abuse of public office and duty), detention was imposed on one person or none. Data are taken from the annual reports of POOCC and annual reports of PPRNM for the period 2015-2018, available at: http://jorm.gov.mk/ category/dokumenti/izvestai/ RECOMMENDATIONS ÂÂRationales in detention decisions ÂÂThe methodology currently used must avoid abstract suspicion that is to collect and process data about not supported by facts, template-based applications and decisions on detention formulas, and not rely on the gravity of orders is not in line with Council of Europe the sanctions threatened or the fact that and EU recommendations, and to a great the criminal offense was committed by a extent does not reflect the true situation. group. This methodology needs to be aligned and ÂÂThe courts must act with greater caution improved. when approving consecutive extensions to ÂÂDetailed, multidimensional research detention orders, in compliance with the studies are needed about the use of ECtHR’s position that after a certain period detention and other precautionary of time has expired the reasons for which measures, including efforts to encourage detention was initially imposed cannot public debate and an inclusive process to remain the sole grounds for extending it. evaluate their use. ÂÂJudicial panels that decide on appeals ÂÂThe Law on Probation needs to against detention orders should be careful be properly enforced and greater use and critical of first-instance detention made of non-custodial measures as an decisions, and should always offer their alternative to detention. This means own arguments, avoiding repeating allocating appropriate resources, as well allegations made by the judge or judicial as capacity-building for all the institutions panel that acted in the first instance. that implement the Law on Probation, and an end to the excessive use of detention. ÂÂAwareness of the presumption of innocence needs to grow. Unless the state can prove reasonable suspicion and provide adequate justification for use of detention in specific cases, a suspect should not be detained. ÂÂThe capacity of prosecution offices needs to be strengthened so they can provide adequate arguments in detention applications, supported by sufficient evidence. ÂÂCourt capacity needs to be increased, with adequate enforcement of provisions under LCP and ECHR, and especially of the ECtHR’s case law on the lawfulness of detention measures. ÂÂThe courts must offer detailed and exhaustive rationales for their detention decisions which adequately explain each circumstance, relevant evidence, and the individual characteristics of each defendant.

BLIND JUSTICE: TO STATE CAPTURE IN NORTH MACEDONIA