LAW ON AMENDMENTS AND SUPLEMENTS TO THE LAW ON COURTS. Article 1

Transcription

1 Unofficial translation Official Gazette No. 150/2010 Courtesy of the OSCE Mission to Skopje LAW ON AMENDMENTS AND SUPLEMENTS TO THE LAW ON COURTS Article 1 In the Law on Courts ( Official Gazette of the Republic of Macedonia no. 58/06 and 35/08), in article 10 paragraph (1) in line 5 after the word publicity the comma is erased and the words and transparency, are added. Article 2 In the article 22 after the words the Administrative Court a comma is placed and the words the Higher Administrative Court are added. Article 3 In Article 23 in the paragraph (3) after the words with extended competence the word mandatory is added. Article 4 After the article 25 a new article 25-а is added and it reads: Article 25-а The Higher Administrative Court is founded and it performs the judicial authority on the entire territory of the Republic of Macedonia. The seat of the Higher Administrative Court is in Skopje. Article 5 In article 30 paragraph (2) in the lines 1 and 7 the number is replaced with the number Article 6 In article 31 paragraph (2) in the line 1 the number is replaced with the number In article 34 the line 5 is erased. Article 7 Article 8 In the article 34 a new article 34-а is added and it reads: Article 34-а the Higher Administrative Court is competent to:

2 (1) act on the appeals against the rulings s of the Administrative Court. (2) to decide on the conflict of competencies among the bodies of the Republic; among the municipalities and the City of Skopje, among the municipalities and the City of Skopje and on the disputes that occurred in the conflict of competencies among the municipalities and the City of Skopje and the bearers of public authority, if this is prescribed by the law, unless the Constitution and the laws do not envision any other kind of judicial protection; and (3) to perform other tasks prescribed by the law. Article 9 In Article 35 paragraph 1 the point 3) is erased. The point 4) becomes point 3). In the point 5) which becomes point 4) after the words other court a comma is placed and the following words are added conflict of competencies between the Higher Administrative court and an other court. The point 6) becomes point 5). Article 10 After the article 36 а, a new Article 36 b is added and it reads: Article 36 b The Supreme Court of the Republic of Macedonia within eight days from the day of adoption of an effective ruling, delivers the ruling to the court budget council. Within 15 days following the reception of the ruling referred in the paragraph (1) of this article, the court budget council shall request the plaintiff or his legal representative to submit data on the bank account for the payment of financial means that have been awarded by the Supreme Court of the Republic of Macedonia. (3) The plaintiff is responsible to submit the data from paragraph (2) of this article within five days from the day of the reception of the request (4) The lack of submission of the data on the part of the plaintiff, in accordance to paragraph (2) of this article, does not represent an obstacle in the enforcement of the ruling referred in paragraph (1) of this article. (5) In the case that the plaintiff does not submit the data on the bank account in the deadline determined in the paragraph (2) of this article, the financial means that were determined to be paid with the ruling referred in the paragraph (1) of this article, are transferred on the deposit account of the court budget council. (6) The court budget council shall transfer the approved financial means on the account of the plaintiff after obtaining the data about the bank account. (7) The financial means that are on the deposit savings account referred in the paragraph (5) of this article shall remain at the disposal of the plaintiff for one year after they have been deposited, at the most. Upon the expiry of this deadline, if the plaintiff does not submit data on the account, the financial means shall be returned to the Budget of the Republic of Macedonia. Article 11 In the article 37 paragraph (1) in the line 1 at the end of the sentence after the word courts the following words are added and it publishes them on the website of the Supreme Court of the Republic of Macedonia.

3 In line 10 after the words disciplinary measure a comma is placed and the following words are added in accordance to the law. After the paragraph (2) a new paragraph (3) is added and it reads : (3) For the stipulated preliminary attitudes and preliminary legal opinions on issues that are of importance for the ensuring of uniformity in the implementation of the laws on the part of the courts, the Supreme Court of the Republic of Macedonia submits an annual report to the Judicial Council of the Republic of Macedonia and it publishes the same on the website of the court. Article 12 In article 39 in the paragraph (8) the words session of the judges are replaced with the words general session of the Supreme Court of the Republic of Macedonia. In the paragraph (11) the words the decision from the paragraphs (4), (7) and (8) are replaced with the words the decision from the paragraphs (4) and (7). In the paragraphs (12) the words of the paragraphот (9) are replaced with the words the paragraphs (8) and (9). Article 13 In the article 42 before the word Judges the number (1) is added. After the paragraph (1) seven new paragraphs (2), (3) (4), (5), (6), (7)and (8) are added and they read: (2) Article 15 paragraph 4 line 3 and the article 16 of this law in view of the psychological test and the test of integrity are utilized also in the election of judges jurors. (3) After the election, the judges jurors mandatory attend a specialized training organized by the Academy for Training of Judges and Public Prosecutors. (4) Following the completion of the training referred in paragraph (3) of this article, the judges jurors take an exam for a completed training. (5) In case the judge juror does not pass the exam referred in the paragraph (4) of this article his function terminates, which is confirmed with a decision by the Judicial Council of the Republic of Macedonia. (6) Following the completion of the exam referred in paragraph (4) of this article, the The Academy for Training of Judges and Public Prosecutors submits a list of the judges jurors which have not passed the exam, within three days. (7) The content, the duration of time and the implementation of the training from paragraph (3) of this article, a specialized programme for training of judges jurors on the part of the Academy for Training of Judges and Public Prosecutors is determined. (8) The content and the manner of implementation of the exam referred in paragraph (4) of this article is regulated by the Academy for Training of Judges and Public Prosecutors. Article 14 In article 43 following the paragraph (3) a new paragraph (4) is added and it reads: (4) A person who is in a direct family relation with a member of the Judicial Council of the Republic of Macedonia in the first blood line or in a side line up to the third degree or is his/hers spouse cannot be elected for a judge or a judge juror.

4 Article 15 In the article 45 paragraph (1) in line 3 after the words ability the following words are added for which medical examinations are performed. Line 4 is amended and it reads: - law graduate with completed four years of higher education in the field of legal studies with a grade point average of at least 8.00 or a law graduate with acquired 300 credit points according to the European credit transfer system (ECTS), with a grade point average of at least 8.00 in each of the two cycles of the university studies, or a verified diploma from a legal faculty abroad for acquired 300 credit points;. In line 4 the conjunction and is replaced with a comma. In line 5 the point is replaced with a comma and three new lines are added and they read: - to actively know one of the official languages of the European Union, of which the English language is mandatory, which is proven with the following internationally recognized certificates: TOEFEL at least 74 points in the case of electronic computer based taking of the test, not older than two years from the day of issuance of the certificate; IELTS at least 6 points, not older than two years from the day of issuance of the certificate; TOLES at least higher level; ILEC passed at least with the grade Б 2 (Б 2); and Cambridge certificate at least First Certificate of English FCE B 2), practical work with computers, and to enjoy a reputation, to posses integrity for the performance of the judicial function and to posses social abilities for the performance of the judicial function, for which tests of integrity and psychological tests are carried out. After the paragraph (1) a new paragraph (2) is added and it reads : (2) The necessary kinds of medical examinations, the form and the content of the psychological test and the test of integrity, as well as the level of practical work with computers referred in the paragraph (1) line 3, 7 and 8 of this article are regulated by the Judicial Council of the Republic of Macedonia. Article 16 After the article 45 a new article 45-а is added and it reads: Article 45-а (1) The psychological test is carried out by the Judicial Council of the Republic of Macedonia and it has as an aim to affirm the candidates for the performance of the judicial council, through checking of the social abilities. (2) The test of integrity that is carried out by the Judicial Council of the Republic of Macedonia is based on the existing ethical and professional codes of conduct of the judicial function and has as an aim the checking of moral and ethical values of the candidate for the performance of the judicial function and it is comprised of: - test which is implemented in written form and anonymously, on the basis of a standardized list of questions and - gathering of data and information for the ethical and moral values of the candidate for the performance of the judicial functions, acquired in a legally relevant manner from 15 persons selected in a random fashion by the Judicial Council of the Republic of Macedonia from the list of the 50 persons proposed by the candidate, which have completed at least secondary education, which know the candidate at least for three

5 years and which cannot be in a blood relation in the first or any line up to the forth degree, nor to the adoptive parent and the adoptee and relatives in-laws up to the second degree to the candidate. (3) The Judicial Council of the Republic of Macedonia, in the process of implementing of the psychological test and the test of integrity, is responsible to take into account the protection of personal data, the reputation and the dignity of the candidate in accordance to the law. (4) In order to implement the psychological test and the first part of the test of integrity, the Judicial Council of the Republic of Macedonia engages experts from an independent and fully accredited professional institutions. (5) The psychological test is implemented on the basis of the internationally recognized psychological tests for the performance of the judicial function which are implemented in at lease one of the member states of the European Union and the OECD. Article 17 Articleот 46 is amended and it reads: (1) The special requirements for the election of a judge in a basic court, an appellate court and the Supreme Court of the Republic of Macedonia are: - for a judge in a Basic court a person who has completed the initial training in the Academy for Training of Judges and Public Prosecutors shall be elected - for a judge in an Appellate court a person may be elected provided that has a working experience of at least four years of uninterrupted judicial length of service as a judge in a Basic court up to the moment of his/her application for an election, who in the past year is graded with the highest positive grade by the Judicial Council of the Republic of Macedonia and has obtained the highest number of points in view of the other candidates that have applied, in accordance to the law, or a judge in the Administrative Court or the Higher Administrative Court who in the past year is graded with the highest positive grade by the Judicial Council of the Republic of Macedonia and has obtained the highest number of points in view of the other candidates that have applied, in accordance to the law and - for a judge in the Supreme Court of the Republic of Macedonia a person may be elected provided that he/she has a working experience of at least six year of uninterrupted judicial length of service as a judge in an Appellate court up to the moment of applying for election and who in the past year is graded with the highest positive grade by the Judicial Council of the Republic of Macedonia and has obtained the highest number of points in view of the other candidates that have applied, in accordance to the law, or a judge in the Administrative Court or the Higher Administrative Court who in the past year is graded with the highest positive grade by the Judicial Council of the Republic of Macedonia and has obtained the highest number of points in view of the other candidates that have applied, in accordance to the law (2) The special requirements for election of a judge in the Administrative Court or the Higher Administrative Court are the following: - for a judge in the Administrative court a person may be elected provided that he/she has a working experience of at least four years uninterrupted judicial length of service as a judge in an Basic court up to the moment of application for an election and who in the past year is graded with the highest positive grade by the Judicial Council of the Republic of Macedonia and has obtained the highest number of points in view of the other candidates that have applied, in accordance to the law or a person that has five years of working length

6 of service in legal issues in a state body with credible working results or a person who is graded with the highest positive grade in the past year, in accordance to the law, and - for a judge in the Higher Administrative court a person may be elected provided that he/she has a working experience of at least three years uninterrupted judicial length of service as a judge in the Administrative court up to the moment of application for an election and who in the past year is graded with the highest positive grade by the Judicial Council of the Republic of Macedonia and has obtained the highest number of points in view of the other candidates that have applied, in accordance to the law or a person that has six years of working length of service in legal issues in a state body with credible working results or a person who is graded with the highest positive grade in the past year, in accordance to the law. Article 18 In article 47 after the paragraph (1) a new paragraph (2) is added and it reads : The judge who in the past two consequent years was graded with the highest positive grade by the Judicial Council of the Republic of Macedonia and who has received the highest number of points, in view of the other candidates, is elected for President of the court The paragraph (2) becomes paragraph (3). Following the paragraph (3) which becomes paragraph (4) a new paragraph (5) is added and it reads: An announcement for election of a President of a court, is announced by the Judicial Council of the Republic of Macedonia two months prior to the expiry of the mandate of the existing President of the court. The Judicial Council of the Republic of Macedonia elects a president of the court, from among the candidates that have applied and that fulfill the necessary conditions, within two months after the announcement is made, at the latest. The paragraph (4) becomes paragraph (6). Article 19 In the article 48 in the paragraph (1) the word secondary is replaced with the word higher, while the number 60 is replaced with the number 64. Article 20 In the article 56 in the paragraph (1) the lines 1, 2 and 3 are erased. The paragraph (2) is erased. In the paragraph (3) who becomes paragraph (2) the number 4 is replaced with the number 1. In article 61 the paragraph (3) is erased. Article 21 Article 22 In article 67 in the paragraph (1) the point is replaced with a comma and the words or while the procedure for the criminal act for which a prison sentence of at least five years is prescribe is ongoing are added.

7 In the paragraph 2 the words for the time period during which the investigation for the criminal act is ongoing, or are erased. Article 23 In the article 68 in the paragraph (2) the words has the right to reply are replaced with the words provides a reply in the time period that is prescribed by the law. Article 24 In the article 70 the paragraph (2) is amended and it reads: (2) When, due to the damage incurred as referred in paragraph (1) of this article, the judge is dismissed, the Republic of Macedonia by view of a lawsuit shall seek from the dismissed judge to return the amount of the damages paid as referred in the paragraph (1) of this article, in the worth which shall be determined by the court, in accordance to the law. After the paragraph (2) a new paragraph (3) is added and it reads: (3) Following the dismissal of the judge who has caused damage to the citizens or to the legal persons with illegal work, the Judicial Council of the Republic of Macedonia notifies the State Attorney within eight days from the day when the decision for dismissal becomes effective, in order for him/her to undertake the measures from the paragraph (2) of this article, within the framework of his/her competencies determined by law. Article 25 In the article 72 in the paragraph (1) the words September 1 are replaced with the words August 15. Article 26 In the article 73 in the paragraph (1) after the line 2 a new line 3 is added and it reads: - with the reaching of 64 years of age, Article 27 In article 75 in the paragraph (1) line 1 is amended and it reads: in the case when during one calendar year, the Judicial Council of the Republic of Macedonia has determined inefficient and untimely conduct of the court procedure which is the fault of the judge, when the judge in his/her own fault in more than five cases has stepped over the legal deadlines for taking of procedural actions, the legal deadlines for adoption, announcement or preparation of the court judgments, or if in the course of one calendar year more than 20% of the total number of his/her resolved cases are revoked or more than 30% of the total number of his/her resolved cases are modified. After line 10 a new line 11 is added and it reads: if a judgment on the part of the European Court of Human Rights was passed according to which a violation of the right to fair trial in accordance to the article 6 of the European Convention on Human Rights is established or if a judgment is adopted by the Supreme Court of the Republic of Macedonia according to which a violation to the trial in reasonable time is confirmed, as a result of the action of the judge,.

8 Article 28 In article 76 in the paragraph 1 before the word More difficult the number (1) is added. In the paragraph (1) after the point 3) a new point 4) is added and it reads: 4) the lack of achievement of the expected results in the work for more than eight months without any justified reasons which is determined by the Judicial Council of the Republic of Macedonia through the number of resolved cases in view of the orientational number of cases which are to be solved by the judge on a monthly basis with a decision of the Judicial Council of the Republic of Macedonia. After the paragraph (1) a new paragraph (2) is added and it reads : (2) For the disciplinary injuries as referred in the paragraph (1) the points 1), 2), 3) and 4) of this article the President of the court is obliged to notify in a written manner the Judicial Council of the Republic of Macedonia within eight days from the day of the perpetration of the violation. Article 29 In the article 77 the words could be pronounced are replaced with the words shall be pronounced. In the point 11) the words professional education are replaced with the words continuous training. The point 12) is amended and it reads: 12) does not apply or hides his/hers property situation or the change of his property situation in accordance to the law or he/she does not submit a statement of interest in accordance to the law. Article 30 In the article 79 paragraph (1) in line 6 the conjunction and is replaced with a comma. In the line 7 the point is replaced with the conjunction comma and two new lines 8 and 9 are added and they read: - if he/she is graded with a negative grade as the President of the court on the part of the Judicial Council of the Republic of Macedonia, in accordance to the law, and - if he/she fails to notify the Judicial Council of the Republic of Macedonia for the committed more serious disciplinary violation on the part of the judge for which a procedure is carried out for disciplinary liability of the judge, in accordance to article 76 paragraph (2) of the Law on Court.. After the paragraph (1) a new paragraph (2) is added and it reads : (2) The President of the court is obliged to submit a report on the realization of the programmed for work for the previous calendar year to the Judicial Council of the Republic of Macedonia by March 1 of the current year, as referred in paragraph (1) line 7 of this article. In the paragraph (2) which becomes paragraph (3) the words the grounds from the paragraph (1) are replaced with the words the ground from the paragraph (1) line 3. Article 31 In article 83 the words care for the education and the professional upbringing of the capacities are replaced with the words care for continuous training of judges and the court administration. After the paragraphот (1) three new paragraphа (2), (3) and (4) are added and they read:

9 (2) In order to investigate the submissions and complaints of the citizens on the work of the courts which are related to the delay of the court proceedings, the Minister of Justice forms a Commission comprised of two representatives from the Ministry of Justice and one representative designated by the Supreme Court of the Republic of Macedonia, for which a report is prepared. (3) The report referred in paragraph (2) of this article is prepared by the Commission and delivered to the Ministry of Justice within 30 days from the day of reception of the submission or the complaint, and the Ministry of Justice submits the report to the Judicial Council of the Republic of Macedonia within 3 days from its reception. (4) The manner of implementation and investigation of the submissions and the complaints by the citizens concerning the work of the courts which are related to the delay of the judicial procedure is regulated by a secondary legislative act that is adopted by the Government of the Republic of Macedonia on a proposal by the Minister of justice. Article 32 In article 84 in the paragraph (2) after the words the keeping of the following words are added records of cases, as well as keeping of, and after the words information system in the courts a comma is placed and the following words are added audiovisual recording of the hearing. Article 33 In article 88 the paragraph (4) is amended and it reads: (2) The President of the court is replaced by the judge who would be designated by him/her according to the annual schedule for the work and who is graded with the highest positive grade for the work in the past year and has obtained the highest number of points in view of the other judges. Article 34 The article 89 is amended and reads: In case of dismissal or termination of the mandate of the President of the court and until a new President of the court is elected, the Judicial Council of the Republic of Macedonia designates from amongst the judges in the court an acting President of the court who is graded with the highest positive grade for the work in the past year and has obtained the highest number of points in view of the other judges. Article 35 In article 97 in the paragraph (1) the words or the judge on his own authorization are replaced with the words the person responsible for public relations. After the paragraph 1 a new paragraph (2) is added and it reads: (2) A public relations office is mandatorily established in the courts: The paragrapha (2), (3), (4) and (5) become paragraphs (3), (4), (5) and (6). Article 36 In the article 99 after the paragraph (2) a new paragraph (3) is added and it reads:

10 (3) The courts are responsible to publish the adopted judgments on the court website within two days from the day of the preparation and the signature, in a manner that is determined by the law. The pragraphs (3), (4), (5) and (6) become paragraphs (4), (5), (6) and (7) Article 37 In the title of Part IX, the word PROFESSIONAL is erased. Article 38 The article 100 is amended and it reads: The court administration is comprised of court administrators, persons employed in the courts that perform technical and assistant tasks and the judicial police. Article 39 The article 101 is amended and it reads: The status, the rights, the duties, the responsibilities of the court administration, the salary system and the compensations of salaries of the court administration, as well as the management of court cases are regulated by law. Article 40 The article 102 is amended and it reads: The court administration performs the tasks determined by law in accordance to the principles of legality, professionalism, accountability, effectiveness, economy and transparency. Article 41 The article 103 is amended and it reads: The court administrators, within the frames of their competencies, are responsible to ensure effective and lawful realization of the rights, freedoms and interests of the citizens in the proceedings that are before the courts Article 42 The aticles 104, 105, 106 and 107 are erased. Article 43 The article 112 is amended and it reads: The competencies of the judicial policies, the rights and obligations, the employment, the disciplinary liability of the representatives of the judicial police and the other questions in the competence of the judicial police are regulated by law. Article 44 The articles 113, 114, 115, 116, 117 and 118 are erased.

11 TRANSITIONAL AND CONCLUDING PROVISIONS Article 45 The fulfillment of the requirement for the ensuring of a grade point average of at least 8.00 for a law graduate with completed four years of higher education of legal studies or a law graduate with acquired 300 credits in accordance to the European Credit Transfer System (ECTS), with a grade point average of at least 8.00 in each of the two cycles of the university studies, or the verified diploma of the law faculty abroad for acquired 300 credits as referred in article 15 paragraph 2 line 1 of this law, the obligation for delivery of an internationally recognized certificate for the knowledge of a foreign language as referred in article 15 paragraph 4 line 1 of this law and the requirement for implementation of tests of integrity and psychological tests as referred in the article 15 paragraph 4 line 3 of this law shall enter into force as of July 1, The special conditions for election of a judge in the basic courts as referred in article 17 paragraph 1 line 1 of this law shall start to be implemented as of July 1, In the time period between January 1, 2012 and January 1, 2013, the Judicial Council of the Republic of Macedonia, shall fill 50 % of the determined free judicial seats in the basic court with persons that fulfill the requirements in accordance to the article 45 of the Law on Courts (,,Official Gazette of the Republic of Macedonia,, no. 58/06 and 35/08) which have not attended the initial training in the Academy for Training of Judges and Public Prosecutors and which have working experience with credible results in the field of law following the taking of the Bar exam for over three years. The special requirements for election of a judge in the appellate courts and in the Supreme Court of the Republic of Macedonia as referred in the article 17 paragraph 1 line 2 and 3 of this law shall start to be implemented as of July 1, Article 46 The fulfillment of the requirement for the ensuring of a grade point average of at least 8.00 as referred in article 15 paragraph 2 line 1 of this law and the requirement for knowledge of a foreign language as referred in article 14 paragraph 4 line 1 of this law shall not be implemented for the candidates for judges which are accepted and have completed the initial training in the Academy for Training of Judges and Public Prosecutors in accordance to the Law on the Academy for Training of Judges and Public Prosecutors ( Official Gazette of the Republic of Macedonia no. 88/2010) and for the judges which are elected before the commencement of the implementation of this law. Article 47 The fulfillment of the requirement for the ensuring of higher education for the election of the judge juror as referred in article 19 the paragraph 1 of this law shall start to be implemented as of January 1, Until the commencement of the implementation of the requirement referred in the article 19 the paragraph 1 from this law, in relation to the paragraph 1 of this article, in the course of the election of judges jurors the candidates with completed higher education shall have an advantage. Article 48 The Higher Administrative Court shall commence to work in accordance to the provisions of the Law on Administrative disputes.

12 In the course of the first election of judges in the Higher Administrative Court, the general requirements for election of judges referred in articleот 45 of the Law on Courts ( Official Gazette of the Republic of Macedonia no. 58/06 and 35/08) and the particular requirements as referred in the article 17 paragraph (2) line 2 of this law. Article 49 The articles 43 and 44 of this law shall start to be implemented with the commencing of the implementation of the provisions of the Law on amendments and addenda to the Law on Court Service. Article 50 This law enters into force on the eight day from the day of its announcement in the Official Gazette of the Republic of Macedonia.