REPORT ON THE EXCHANGE AND SUMMARY

Transcription

1 REPORT ON THE EXCHANGE AND SUMMARY Instructions: 1. The report must be sent to the EJTN within one month after the exchange. 2. Please use the template below to write your report (at least 4 pages). 3. The report must be filled in English or French. If not possible, the report could be written in another language but the summary must be in English or French. 4. Please read the guidelines for drafting the report (in Annex). Feel free to add any other relevant information in your report. 5. The summary (1-2 pages) shall contain a synthesis of the most important information of the report. 6. If you agree for your report and/or summary to be published on the EJTN website, please tick the relevant box below. Identification of the participant Name: First name: Nationality: Czech Functions: judge Length of service: 2 years Identification of the exchange Hosting jurisdiction/institution: The Academy for Training of Judges and Public Prosecutors of the Republic of Macedonia City: Skopje, Ohrid Country: Republic of Macedonia Dates of the exchange: 4 th 16 th October 2009 Type of exchange: one to one exchange group exchange general exchange specialized exchange (please specify : ) Authorization of publication I undersigned Martin Tomek hereby authorize the publication of this report and/or summary on the website of the. In Hradec Králové On October 30, 2009 Signature / (aisbl) Rue du Luxembourg 16B, B-1000 Bruxelles; Tel: ; Fax: ; exchanges@ejtn.eu

2 REPORT I was lucky I could be a participant of group exchange organized by EJTN in the Republic of Macedonia. I was there with colleagues from other states with a criminal judge from Italy and with public prosecutors from Italy, Spain and Romania. I was only one civil judge in our group exchange, that is why sometimes I had different programm than my colleagues. So I was lucky again because I had occasion to know private chambers of enforcement agents, mediators and notaries. The Academy for Training of Judges and Public Prosecutors was our hosting institution which organized our programme, ensured translation, helped us to solve any kinds of affairs and even took care of us on our free time (I can mention e.g. organized tours in Ohrid and Skopje, stops in Herakleion and Stobi during our journey from Ohrid to Skopje, invitation to dinner), so we had opportunity to recognize big part of Macedonia, its history, culture, nowadays reality and atmosphere and kindly people living there. Really our great thanks belong to the Academy. The Academy for Training of Judges and Public Prosecutors was established with the law and has been working from 1st February Basic goal of The Academy is to choose candidates of the judicial and prosecutorial function (they are chosen through double filter qualification test and admission exam consisted question about EU law, international law, foreign languages), educate them (15 months of initial training and then practical part). Candidates then pass final exams and gain the right to be elected as judges or appointed as public prosecutors by the Judicial Council or Council of public prosecutors in accordance with the ranking list prepared and delivered by the Academy. The Academy also implements continuous training for judges and public prosecutors as a compulsory minimum of classes in accordance with their length of service as judges or prosecutors. E.g. 114 seminars with 2939 participants were held in 2009 until July. Organization of the courts of the Republic of Macedonia is divided into basic courts, appellate courts, Administrative court and Supreme court of the Republic of Macedonia. Basic courts are 1st instance courts. There are 27 basic courts in the Republic of Macedonia. Basic courts are established as courts with basic competence and courts with enhanced competence (within the basic courts with enhanced competence, specialized court

3 departments are set up to act upon specific types of disputes e.g. Basic Court Skopje I which is specialized in the area of organised crime and corruption for whole territory of Republic of Macedonia). I was allowed to spend one day in Basic Court Skopje II and one day in Basic Court Ohrid. Basic Court Skopje II is a civil court of basic and extended competence. My impression has been very good from this court because of kind judges and especially president of the court. They dedicated me a lot of time in spite of they have a lot of work. I could recognize work of many departments of this court (mail room, offices etc.) and I also visited two trials and talked with judges about similarities and differencies of our work. I also visited a labour-law trial (dispute about unfair dismissal) in Basic court Ohrid and that was very useful for me because one of my specializations is on labour cases. Trial was very similar (similar evidence, trial before jury in labour-law cases) excepting some aspects mentioned below (see differences in civil law procedure ). I was gratified by one regulation of Macedonian process law that labour-law cases must be finished till six month. We are trying to finish labour-law cases as quickly as possible in the Czech Republic but it is sometimes difficult, especially with jury. There are four appelate courts in the Republic of Macedonia and their seats are in Bitola, Gostivar, Skopje and Stip. Appellate courts are competent for deciding on appeals against the decisions of the basic courts, deciding on conflicts of jurisdiction between courts of first instance and other work specified by law (e.g. evaluation of judges of the basic courts etc.). Judges of appellate courts are chosen in selection procedure from judges of basic courts on the basis of their application. We could visit Appelate court in Skopje which has actually 42 judges (but it should have 49 judges according to systematization) and covers 70% of the Republic of Macedonia. The seat of the Supreme court of the Republic of Macedonia is also in Skopje and the Supreme court is competent for deciding in second instance against the decisions of its panels when it is stipulated by law, deciding in third and final instance on appeals against the decisions of appellate courts, deciding in second instance upon appeals against decisions of the Administrative Court in cases foreseen by law, deciding upon extraordinary legal remedies against final court decisions and the decisions of its panels when stipulated by law, deciding upon collision of jurisdiction between courts of first instance from vicinities of different appellate courts; collision of jurisdiction between appellate courts; collision of

4 jurisdiction between the Administrative Court and another court; and deciding on the transfer of subject-matter jurisdiction of these courts. We were a lot of interested in one competence of the Supreme court to decide upon a violation of the right of trial within a reasonable time before the courts in the Republic of Macedonia at the request of the parties and other participants in a procedure. President of the Supreme court told us that the Supreme court has judges and 3 departments 1 st for civil cases, 2 nd for criminal cases and 3 rd for judging in reasonable time. This department of the Supreme court have been deciding 250 cases till October 2009 and compensation was awarded only in 14 cases. Such cases are also consult with delegate of the Republic of Macedonia in Strasbourg. In my opinion sometimes it can be profitably because compensation actually save money of the state, but sometimes such trials before the Supreme court are able to bring next delay of the trial. If I should write something about equipment of courts in the Republic of Macedonia, I can confirm that equipment of majority visited courts there was very good, e.g. on Basic court in Ohrid even better than in my home court in the Czech Republic (LCD panels on the walls, security zones for judges). On the other hand I was surprised that judges on Basic court II in Skopje had not own computers and had to dictate adjudgements by phones. But judges told me the situation should change and judges should receive computers till the end of the year. Generally I can say that Macedonian law principles (mainly in civil law procedure because I was concerned mainly on this area) are very similar to law principles in the Czech republic (e.g. equality of the parties, trial within reasonable time, public hearings, contradiction). In contrast of Czech civil law a party of trial in the Republic of Macedonia has the right appeal in all cases (even in small cases where is not right to appeal by Czech law). I have also noticed some differences in civil law procedure during observing trial. E.g. jury is used much more in civil cases than in the Czech Republic, members of jury do not wear black gown, identity of witnesses is not controlled by court (if identity is not controversy), there is usually adjudgement on adjourned hearing (not directly after final statement) etc. There are big differences in organization of justice when I compare Czech and Macedonian form. Differences are mainly connected with existence of Judicial council in the Republic of Macedonia (nothing similar exist in the Czech Republic judges are established by president of the Czech Republic on suggestion of minister of justice).

5 Judicial council is relatively new institution with big competences. Judicial council is an autonomous and independent judicial body which consists of 15 members (e.g. 8 judges, 3 members elected by Parliament, ministry of justice, president of Supreme court). Members are elected each 6 years. All judges have been elected by Judicial council from 2006 (nearly they used to be elected by Parliament). The Council elects a judge in a court of first instance from the list of candidates delivered by the Judicial Academy for the training of judges and public prosecutors. Judge of an Appellate Court, the Administrative Court and the Supreme Court of the Republic of Macedonia are elected from the rank of candidates who have replied to the vacancy and who fulfilled conditions and criteria stipulated by the Law on Courts. Judicial council has also other important competences: e.g. to dismiss judges, to elect and dismiss lay judges (lay judges do not exist in the Czech Republic but it is supposed they will be established in the near future), to monitor and evaluate the work of the judges, to decide on the disciplinary accountability of the judges, to nominate two judges in the Constitutional Court of the Republic of Macedonia from the ranks of judges, to decide on the temporary suspension of a judge from the judicial office, to establish the number of necessary judicial positions for the courts, to care for the reputation of the judges and the trust of the citizens in the judiciary. One interesting thing is connected with last mentioned competence of Judicial council. Only presidents of courts, press officers and members of Judicial council are allowed to provide information about concrete trials in television. Other judges do not communicate with television because they are not allowed to do it and partly because Judicial council has to care for the reputation of the judges and the trust of the citizens in the judiciary by explaining background of monitored trials. As a civil judge I also visited next institutions mentioned below: Chamber of Enforcement Agents of Macedonia seats in Skopje and was established in June 2006 (right after the appointment of the first enforcement agents). Macedonia adopted its new Law on Enforcement Procedure in October After it, in 2003, Ministry of Justice according to Recommendations by the Council of Europe formed a working group to propose changes in procedure for enforcement of court decisions. In May 2005 was adopted the new Law on Enforcement. It has been existing only one way how to enforced a decision of a court from 2006 by private enforcement agents. The new Law was influenced by experiences from Netherlands and Lithuania. Ministry of Justice decided that 69 enforcement officers could be appointed but he increased the number of agents to 132 in December At the moment only 66 enforcement agents from 132 work in Macedonia.

6 Chamber of mediators is very new and in my opinion very poor chamber of the Republic of Macedonia (even it was difficult to find this chamber because it seats in dark house without any headlines.). But I think this chamber together with importance of mediators will develop in the future. On time of my visit 130 mediators were appointed. It is possible to interrupt trial on 40 days and send parties of a trial to mediator by civil law procedure act (except labour-law cases where Ministry of work is responsible for mediation). But mediators complained that it was not used by judges frequently. Chamber of notaries is traditional chamber in judicial systém not only in Macedonia and seats in Skopje. I had occasion to attend seminar on unifying the implementation of the law in relation to the inheritance which was organized by Chamber of notaries. Although I am not an expert on this topic in the Czech Republic I have found that very similar law to Czech (and other EU countries) law was implemented in the Republic of Macedonia. I think that it is very important because inheritence is very international topic and law in relation to the inheritance should be harmonized in all EU countries (and Macedonia is quickly going to EU). In my opinion exchange have brought me a lot of experiences, new contacts and knowledge. This exchange could be useful also for courts in my region because president of the Basic court Skopje II and my foreign colleagues have interest to organize exchanges between our courts. It is the right way how to develop EU integration and harmonize law. I would like to suggest to be organized much more exchanges among EU states and states which candidate to be a member of EU because such visits help them to harmonize their law with law of EU countries. And on the other hand EU countries can find new and better alterantives how to solve some of their problems in such enthusiastic way I could see in Macedonia.

7 SUMMARY Exchange stay in Macedonia was very interesting and useful for me. It was interesting to find a lot of information about different isntitutions connected with judicial system of the Republic of Macedonia in theoretical way and after it in practical way by hearings and discussions. During hearings we could compare similarities and differences of our and macedonian s process. We developed discussion not only about similarities and differences of trials, but also about next topics, in the evenings with colleagues form Italy, Spain and Romania. So we were able to compare more than two judiciary systems. I think it is big advantage of group exchanges that participants learn a lot not only about hosting judiciary system. I had next advantage which helped me to understand more during hearings and discussions. Knowledge of Serbian language wich is similar to macedonian s was useful during trials because I did not need to translate everything what was said. It helped me to know Macedonian s society and judiciary system better in more realistic way. Finally I have to appreciate Macedonian s enthusiasm and hard work in implementation EU law and their big effort to reach better judicial system. Such enthusiasm maybe miss in many traditional western countries. Both Czech Republic nad Macedonia founded in 90 s years when former Czechoslovakia and Yugoslavia split. I could see how Macedonia has managed to transform in modern law state and compare it with changes which were taken place in Czech Republic in last 15 years. I can only repeat suggestion that much more exchanges among EU states and states which candidate to be a member of EU should be organized. Such visits help not only to candidates states but all of us because we all have to study how improve our law to be better organized and mainly more justified.

8 ANNEX GUIDELINES FOR DRAFTING THE REPORT I- Programme of the exchange Institutions you have visited, hearings, seminars/conferences you have attended, judges/prosecutors and other judicial staff you have met The aim here is not to detail each of the activities but to give an overview of the contents of the exchange. If you have received a programme from the hosting institution, please provide a copy. II- The hosting institution Brief description of the hosting institution, its role within the court organisation of the host country, how it is functioning III- The law of the host country With regard to the activities you took part in during the exchange, please develop one aspect of the host country s national law that you were particularly interested in. IV- The comparative law aspect in your exchange What main similarities and differences could you observe between your own country and your host country in terms of organisation and judicial practice, substantial law..? Please develop. V- The European aspect of your exchange Did you have the opportunity to observe the implementation or references to Community instruments, the European Convention of Human Rights, judicial cooperation instruments? Please develop.

9 VI- The benefits of the exchange What were the benefits of your exchange? How can these benefits be useful in your judicial practice? Do you think your colleagues could benefit of the knowledge you acquired during your exchange? How? VII- Suggestions In your opinion, what aspects of the Exchange Programme could be improved? How?