1 Recommendation No. R(94)12 of the Committee of Ministers. 2 Basic Principles on the Independence of the Judiciary of 1985

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1 Stabilitätspakt für Südosteuropa Gefördert durch Deutschl Stability Pact for South Eastern Europe Sponsored by Germany Introduction Judicial independence is hallmark any democratic society. It represents one fundamental principles on which European Union (hereinafter EU) is founded its importance has been recognized both by Council Europe 1 United Nations 2. This doctrine enshrines two fundamental principles, separation powers rule law, representing one main values on which EU is founded according Article 2 Treaty on European Union its Preamble. In context EU enlargement, this is translated as one key requirements for accession countries, which also Macedonia needs achieve, embrace promote in order become a member Union. This is also why rule law, judicial independence (hereinafter JI) as an important element, are at centre accession process. This policy brief examines effectiveness appropriateness European Commission s approach in bolstering JI in Macedonia. Consequently, it shall elaborate on how EU conditionality can be adapted grasp opportunity which arose introduction new approach in EU accession negotiations introduced in 2012, influence deeply rooted irreversible reforms in Macedoni a in realm JI. While seeking answers se questions, several issues have be taken in consideration: a) In 2013, Macedonia received a recommendation open accession negotiations for fifth time in a row following an assessment by Commission that country sufficiently meets political criteria; b) The 2013 EU Progress Report takes note existence claims selective justice, indirect political pressure on judiciary, judgments which are unusually expedited in terms outcome or speed, as well as cases where content judgments sometimes has direct consequences for career judge concerned, particularly in high-prile or politically sensitive cases. 3 c) The US State Department Report on Macedonia on Human Rights Practices for 2013 mentions government s failure fully respect rule law including interfering in judiciary selective prosecution political opponents. 4 JI conditionality is a crucial element in accession process, even more since introduction new approach in negotiations EU. The brief points out limits current overly technical approach, fers suggestions on how re-prioritise substantial, long-lasting reforms in this area subsequently formulate recommendations operationalise this approach increase effectiveness rule law conditionality applied JI in Macedonia. 1 Recommendation No. R(94)12 Committee Ministers Member States on Independence, Efficiency Role Judges. 2 Basic Principles on Independence Judiciary 1985 (endorsed by UN General Assembly); The Bangalore Principles Judicial Conduct November 2002 (endorsed by UN Economic Social Council) COM (2013) 700 COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL Enlargement Strategy Main Challenges p Human Rights Reports: Macedonia. U.S. Department State. U.S. Department State, 27 Feb Web. 13 Aug < p. 1

2 Association Zenith EU approach wards judicial JI conditionality is a crucial element in accession independence process, even more since introduction new approach in negotiations EU. The brief Clear points conceptualisation out limits current principle overly JI expressed technical by approach, Commission fers suggestions is a on prerequisite how -prioritise determine substantial, extent long-lasting which reforms independence this area judiciary subsequently is respected formulate in a recipient recommendations country. Furrmore, operationalise it is also this essential, approach from increase a stpoint effectiveness an accession country, rule have law a clear conditionality idea a applied practical JI understing Macedonia. how independence judiciary can be achieved. Although one can identify EU approach some wards recurring judicial criteria independence imposed by EU rule law conditionality, such as selection judges, Clear disciplinary conceptualisation action dismissal principle judges, JI advancement expressed by Commission deployment is (move) a prerequisite judges determine ir training, extent regrettably, which re independence is no commonly accepted definition JI at EU level. judiciary is respected in a recipient country. Furrmore, it is also essential, from a stpoint The EU approach relies on European stards an accession country, have a clear idea a promoted by organisations institutions such practical understing how independence as European Network Councils for Judiciary, judiciary can european be achieved. commission Although one for can democracy identify through some recurring Law, criteria different imposed legal by traditions EU rule its member law conditionality, states. Thus, such principle as selection JI is defined judges, in various disciplinary ways. Some action practitioners dismissal scholars judges, have introduced advancement extensive deployment lists indicars (move) 5 judges judiciary must ir fulfil training, order regrettably, be re independent, is no commonly whereas ors accepted highlight definition JI importance at EU level. institutional arrangements policies, which should safeguard judicial The EU institutions approach relies from on internal European stards external influence. promoted While by organisations both dimensions such shall as be European treated in this Network policy brief, Councils emphasis for shall be Judiciary given on rule different law conditionality legal traditions applied its member its effectiveness states. Thus, in safeguarding principle judiciary JI is defined from in external various ways. influence, Some as it practitioners is also considered by scholars EU as have most introduced worrying threat extensive JI lists in Macedonia. indicars In 5 doing judiciary so, must brief fulfil shall observe in order JI in both be its institutional independent, aspects, whereas regarded ors as absence highlight external influence importance from executive institutional legislative arrangements branches policies, government, which should safeguard individual aspects, judicial regarded institutions as internal from internal influence in external judiciary, influence. which While could both have dimensions an effect shall on be treated decisions in this individual policy brief, judges. emphasis 6 While shall be institutional given aspect rule reflects law conditionality legal framework applied safeguarding its effectiveness JI in manner safeguarding how courts judiciary currently from operate external in influence, practice, as latter it is aspect also considered refers by widespread EU as mind-set most amongst worrying judges threat JI public in Macedonia. prosecurs. In doing so, brief shall observe JI in both its institutional aspects, regarded as absence external influence from executive legislative branches government, EU conditionality in judicial independence individual aspects, regarded as internal wards influence in Macedonia judiciary, which could have an effect on decisions individual judges. 6 While Macedonian institutional aspirations aspect reflects join legal framework Union have caused safeguarding a heightened JI level manner interest, how both courts among domestic currently operate foreign in audiences, practice, in latter conditions aspect for refers judiciary as widespread well as in mind-set need amongst define judges areas which public must prosecurs. undergo structural reforms in order implement established European stards criteria. EU conditionality In regard in judicial reforms independence judiciary, Stabilisation wards Macedonia Association Agreement (SAA) places particular importance on consolidation rule law Macedonian by means aspirations reinforcement join institutions Union have at all levels in areas administration in general caused a heightened level interest, both among law enforcement machinery justice in domestic foreign audiences, in conditions particular. 7 for judiciary as well as in need define areas which must undergo structural reforms in It explicitly regulates that collaboration in area order implement established European stards justice will be directed wards three primary issues: criteria. independence In regard judiciary, reforms improving its judiciary, efficiency Stabilisation training personnel Association in legal pressions. Agreement (SAA) On se places grounds, particular importance on basis on lessons consolidation learned from rule conditionality law by means applied in reinforcement implementing judicial institutions reforms at all in levels Central in Eastern areas European administration Countries, in general EU has constructed law an enforcement institutional approach, machinery which would justice serve in as particular. foundation 7 It explicitly for strengning regulates that JI in collaboration Macedonia. 8 This in model area is justice applied will in be all directed accession wards countries three primary Western issues: Balkans independence as part EU association judiciary, process. improving It envisages its efficiency two key training reforms: personnel 1) significant in changes legal pressions. Judicial On Council se grounds, in terms instituting on an basis independent lessons judicial learned body from which conditionality would ensure applied guarantee in implementing integrity judicial independence reforms Central judicial Eastern branch 9 European 2) establishment Countries, EU Academy has for constructed Judges institutional Public Prosecurs approach, which as would main body serve which as will foundation provide competent, for strengning pressional, JI in independent, Macedonia. This impartial model is applied efficient in all performance accession countries judicial Western prosecution Balkans as functions part through EU selection association cidates process. It for envisages judges two key reforms: 5 5 ENCJ Project Project Independence Independence Accountability Judiciary Accountability Rome, June Judiciary Rome, June Bangalore Principles Principles Judicial Judicial Conduct Conduct November November 2002 (endorsed by UN Economic Social Council) Stabilisation (endorsed by Association UN Economic Agreement between Social Council) European Communities 7 Stabilisation Their Association Member States, Agreement One between Part, Republic European Macedonia, Communities Or Their Part: Member Luxembourg, States, 9 April London: Stationery Office, One Part, Republic Macedonia, Or Preshova, D. Searching for Right Approach: EU Enlargement Part: Judicial Luxembourg, Reforms in 9 April Western Balkans. London: Foundation Stationery for European Office, Progressive Studies/Renner Institut, 31 May Web. 9 Law on Judicial Council Republic Macedonia, Official Gazette Republic Macedonia, No. 60/06 2

3 Zenith Policy Brief 1) public significant prosecurs changes as well Judicial as implementation Council in terms initial instituting training continuous independent pressional judicial body training which judges would ensure public prosecurs, guarantee as well integrity as judiciary independence prosecution clerks. 10 judicial branch 8 2) establishment Academy for Judges Public So Prosecurs as provide as additional main body assistance which will provide support competent, sufficiently pressional, prepare independent, country for impartial future membership efficient in performance Stabilisation judicial Association Agreement, prosecution functions EU has established through selection Accession Partnership Macedonia, in which one key cidates for judges public prosecurs as well priorities requirements relating political as implementation initial training continuous criteria is establishing a sustained track record on pressional training judges public implementation judiciary reforms, strengning prosecurs, as well as judiciary prosecution independence clerks. 9 overall capacity judicial system. 11 So as provide additional assistance support The emphasis on EU s political conditionality in sufficiently prepare country for future negotiation process Croatia Turkey membership in Stabilisation Association by means introducing benchmarking system was Agreement, also reflected EU in has established accession process Accession or Partnership countries Macedonia, Western in Balkans. which one In case key Macedonia, priorities requirements 2009 European relating Commission recommendation political criteria on is opening establishing accession a sustained negotiations track was record based on on implementation fulfilment 8+1 judiciary key priorities reforms, (benchmarks) strengning identified independence Accession Partnership. overall As capacity in previous judicial stages system. 10 enlargement process, special attention has been dedicated implementation The emphasis on EU s reforms political in conditionality judiciary. In in this context, negotiation one process criteria was Croatia secure continuous Turkey by results means in introducing implementation benchmarking judicial system reforms was also reflected strengn in independence accession process overall or capacity countries judicial Western system. Balkans. In case Macedonia, 2009 European Commission In recommendation March 2012, on opening European accession Commission negotiations was Government based on fulfilment Macedonia 8+1 started key priorities High Level (benchmarks) Accession Dialogue identified in order in boost Accession reforms primarily Partnership. on pics As relating previous political stages accession criteria. enlargement Rule process, law fundamental special attention rights has were been one dedicated prioritised areas, implementation emphasising reforms quality in independence judiciary. In this context, judiciary. one The target criteria was was set on undertaking secure continuous activities results at all in court implementation levels maintain a positive judicial clearance reforms rate 12 verifiable strengn progress in reducing independence backlog cases. overall The capacity most significant reform judicial directly system. related JI was amendment Law on Courts regarding selection criteria according In March 2012, which, starting European from Commission 2013, all newly appointed Government first instance Macedonia judges started must be graduates High Level Academy for Judges Public Prosecurs. Accession Dialogue in order boost reforms 13 primarily on pics relating political accession In criteria. addition Rule law High Level fundamental Accession rights Dialogue, were a technical one dialogue prioritised on areas, rule emphasising law Chapters quality has independence also been launched. judiciary. This methodology The target was was promoted set on undertaking in activities frames at all court Commission s levels new maintain approach a positive in negotiations clearance rate on 11 Chapters verifiable on Judiciary progress in reducing Fundamental backlog Rights, cases. The Justice, most Freedom significant reform Security, directly applied related for first JI time was in negotiations amendment Montenegro. Law Courts Despite regarding EU s longlasting selection commitment criteria according in this field which, starting domestic from reforms 2013, all completed newly appointed over first instance course judges must last decade be graduates in line European Academy stards, for Judges 2013 Public EU Progress Report Prosecurs. 12 takes note concerns about how In addition High Level courts currently operate in practice. These relate Accession Dialogue, a technical dialogue on rule mainly independence courts as well as law Chapters has also been launched. quality justice overall. 14 This methodology was promoted in frames Commission s new approach in negotiations Judicial independence reforms in Macedonia Chapters on Judiciary Fundamental Rights, Justice, Freedom Security, applied According for first time Assessment in negotiations implementation Montenegro. Strategy Despite for EU s reform long-lasting judicial commitment system in this field 15, a comprehensive domestic reforms system completed formal safeguard over course related JI last was decade established, in line paving European way for stards, constituting 2013 functional EU Progress structural Report independence. takes note According concerns about how document, courts general currently objective operate in practice. Strategy These has relate been mainly fulfilled a independence functional effective courts as judicial well as system, quality which relies justice on overall. European 13 stards, has been created. This was also noted in 2013 Progress Report on Macedonia for reforms in this area, 16 although Report 8 Law on registers Judicial concerns Council Republic implementation Macedonia, JI in Official practice. Gazette Republic Macedonia, No. 60/06 9 Law on Academy Judges Prosecurs,, Official 10Gazette Law on Academy Republic Judges Macedonia, Prosecurs, No., 13/06 Official Gazette /212/EC: Council Decision 18 February 2008 on 11 Republic Macedonia, No. 13/ /212/EC: Principles, Priorities Council Decision Conditions 18 February Contained 2008 in on Principles, Accession Priorities Partnership Conditions Former Contained Yugoslav in Republic Accession Partnership Former Yugoslav Republic Macedonia Repealing Macedonia Decision 2006/57/EC. Repealing 2008 Decision O.J. L 80/ /57/EC O.J. This L is 80/32 ratio number resolved cases over number 11 incoming This is cases. ratio It measures number wher a resolved court is keeping cases up over its incoming number caseload. 13 incoming cases. It measures wher a court Nechev, is keeping Z., Vidovic up Mesarek, its incoming G., Saranovich, caseload. N., Nikolov, A. Embedding Rule Law in Enlargement Process: A Case for EU 12 Political Nechev, Conditionality Z., Vidovic Mesarek, in Accession G., Saranovich, Western N., Balkan Countries. Nikolov, Skopje: A. Embedding Association Rule for Development Law in Enlargement Initiatives Zenith, Process: A Case for EU Political Conditionality in European Commission. THE REPUBLIC OF MACEDONIA 2013 PROGRESS Accession REPORT. Western Brussels, 2013.SWD(2013) Balkan Countries. 413 Skopje: Final. p Association Assessment for Report, Development funded by Initiatives European Zenith, Union, implemented by 13 SOGES European s.p.a. Commission. THE REPUBLIC OF MACEDONIA European PROGRESS Commission. REPORT. THE Brussels, REPUBLIC 2013.SWD(2013) OF MACEDONIA PROGRESS REPORT. Brussels, SWD(2013) 413 Final. p. 39 Final. p. 11 3

4 Association Zenith The principle JI is institutionalised in Article 98 Constitution, which states that courts exercise Judicial judicial independence power reforms y are in Macedonia aunomous independent in conducting ir work. The types According courts, ir Assessment fields competence, implementation ir establishment, Strategy for abrogation, reform organization judicial system composition, as, a well comprehensive as procedure system y follow formal are regulated safeguard by related a law adopted JI was by established, a two-thirds paving majority vote way for tal constituting number functional Members Parliament. structural Significant independence. constitutional According changes document, safeguarding general independence objective Strategy judiciary has were been made fulfilled in December a functional The Judicial effective Council judicial was system, introduced which as relies an independent on European stards, aunomous has been institution created. This judiciary. was also The noted number in 2013 members Progress was Report increased on from Macedonia seven for fifteen, reforms out in this whom area, eight 15 although are elected by Report judges registers from concerns among ir implementation own ranks. The JI President in practice. Supreme Court Minister Justice are ex ficio members Judicial Council. This The was principle subject JI is change, institutionalised when, in in 2011, Article in 98 line European Constitution, stards, which states 17 that Minister courts exercise Justice s right judicial vote power in Judicial y Council are aunomous was removed. Besides independent a substantial in conducting increase ir in judges work. The as members types chosen courts, by ir ir peers fields from all levels competence, judiciary, ir considerable establishment, competences abrogation, were organization assigned Judicial composition, Council as such well as as moniring procedure y assessing follow work judges, electing dismissing judges are regulated by a law adopted by a two-thirds presidents courts. Subsequent legislative majority vote tal number Members changes even furr strengned role Parliament. Council giving judges a wide variety options on how decide impartially, based on free appraisal evidence Significant constitutional application changes law. safeguarding independence judiciary were made in December The Judicial Council was introduced Despite se advancements, practical as an independent aunomous institution application JI in regard external pressure judiciary. The number members was remains inconsistent. A number high-prile cases involving increased state from ficials, seven political fifteen, party out members whom eight representatives are elected by judges media from have among been underlined ir own in ranks. EU The Progress President Report as Supreme instances Court where undue political Minister influence Justice may are have ex been ficio exercised. members Judicial Council. This was subject change, when, In in spite 2011, this, in line Judicial European Council, stards, body in 16 charge Minister guaranteeing Justice's independence, right vote is perceived in Judicial by vast Council majority was removed. judges Besides as a biased a substantial dependent increase institution, judges as members is itself subject chosen by external ir peers influence. from all 18 The levels findings judiciary, 2009 OSCE considerable countrywide competences survey on were independence assigned judiciary, Judicial Council as perceived such as experienced moniring by judges, assessing reveals a widespread work concern judges, electing 66% tal dismissing number judges judges presidents in Macedonia who courts. consider Subsequent that legislative Judicial changes Council even does furr not act as strengned an independent institution role Council that giving institution judges a does wide not variety fulfill its function options properly. on how Even more, decide 70% judges believe that selection Judicial Council members is biased. impartially, based on free appraisal evidence application law. The result survey unveils a confounding glimpse situation JI in Macedonia. On Despite se advancements, practical one h, survey was conducted in 2009 application JI in regard external pressure before introduction major legislative changes remains inconsistent. A number high-prile contributing furr strengning JI prior cases involving state ficials, political party implementation significant organisational improvements members representatives judicial system. media No have such inclusive been underlined survey has in been EU conducted Progress Report ever since. as On instances or where h, undue it is political not a foregone influence may conclusion have that been se exercised. improvements sufficiently addressed challenges outlined in survey furr strengned In spite this, JI in Macedonia. Judicial Council, The findings body in survey charge reveal guaranteeing an overwhelming independence, majority is perceived judges distrust by vast negative majority perception judges as about a biased body guaranteeing dependent institution, JI about mechanisms itself subject in place. This external could influence. be detrimental 17 The findings JI, since this 2009 principle OSCE is countrywide not determined survey only by independence legal framework safeguarding judiciary, as it, perceived but also by experienced perception by judges, those exercising reveals a widespread judicial power. concern If judges 66% do not tal trust ir number own procedures judges in Macedonia practices, who one consider could that not expect Judicial much Council in relation does not act public as an confidence independent in institution judiciary that ir institution independence. does not Appearance fulfill its function independence, properly. Even nothing more, less 70% than judges believe reality, is that vital. In selection words Judicial outgoing Council members EU Justice is Commissioner, biased. Viviane Reding, rule law means ultimately a system where justice is not only done, but it is seen be done, so that system can be trusted The result by all citizens survey deliver unveils justice. a confounding 19 Ultimately, JI glimpse is not a prerogative situation or privilege JI in Macedonia. granted in On judges own one interest, h, but survey in was interest conducted in 2009 rule before law in introduction this sense should major be regarded legislative as a guarantee changes contributing freedom respect furr strengning for human rights. JI 20 prior implementation significant organisational improvements judicial system. No such survey has been conducted ever since. 17 Opinion no.10 (2007) Consultative Council European Judges (CCJE) attention Committee Ministers Council Europe on Council for Judiciary at service society round4/ccje-opinion _en.pdf Assessment Report, funded by European Union, 18implemented by SOGES s.p.a. 15 OSCE Spillover Monir Mission Skopje, Legal Analysis: Independence European Commission. Judiciary, THE REPUBLIC December OF MACEDONIA < org/skopje/67584>. PROGRESS REPORT. Brussels, SWD(2013) 413 Final. p Opinion Vice-President no.10 (2007) European Consultative Commission, Council European EU Justice Commissioner, Judges (CCJE) Viviane, attention Reding. The EU Committee Rule Ministers Law What Next? Council Centre for Europe European on Policy Council Studies. for Belgium, Judiciary Brussels. at 4 Sept Web. 14 Aug < SPEECH _en.htm>. service society. 20greco/evaluations/round4/CCJE-opinion _EN.pdf 17 Recommendation CM/Rec(2010)12 Committee Ministers OSCE Spillover member Monir states Mission judges: Skopje, independence, Legal Analysis: efficiency responsibilities Independence Judiciary, December < 4

5 Zenith Policy Brief The data on citizens satisfaction services delivered by judicial system obtained from On or h, it is not a foregone conclusion 2012 European Commission report for efficiency that justice se (CEPEJ) improvements on Macedonia sufficiently display addressed a different picture challenges than outlined one presented in survey in OSCE furr survey. The strengned report reveals JI in figures Macedonia. which show The findings positive trends survey constant reveal increase an overwhelming citizen satisfaction. majority Namely, judges distrust satisfaction negative rate perception court performance about in body June 2010, guaranteeing just six months JI about after mechanisms OSCE survey in place. results were This could published, be detrimental was 79,57% JI, since followed this principle by furr is increase not determined December only 2010 by 83,83%. legal 21 framework safeguarding it, but also by perception those Limits exercising judicial current power. EU approach If judges do not trust ir own procedures practices, one could not Major expect reforms much in were relation conducted public in confidence past in period leading judiciary a complete ir independence. overhaul Appearance judicial system in independence, line European nothing stards less than reality, practices. is vital. In this In sense, words rule law conditionality outgoing EU aimed Justice at bolstering Commissioner, JI in Macedonia Viviane Reding, has served rule its law aim. means It has significantly ultimately a influenced system where domestic justice is judicial not only reforms done, resulting but it is in seen establishment be done, so that institutions system capable can be trusted guaranteeing by all citizens democracy deliver rule justice. law. 18 Ultimately, However, in JI line is not a prerogative 2013 EU or privilege Progress granted Report, in concerns judges are own raised interest, about but how in courts interest currently rule operate law in practice in this sense that should more needs be regarded be done as a guarantee ensure proper freedom implementation respect for stards human rights. relating 19 JI. 22 Suffice The data say, on citizens ongoing satisfaction stalemate in Macedonia s services EU delivered accession by bid, caused judicial by system Greece s obtained non-european from attitude, 2012 European commenced Commission show report its for negative efficiency effects on justice implementation (CEPEJ) Macedonia successful display a EU-related different rule picture law than reforms. one The presented in impasse OSCE negatively survey. affects The report tempo reveals reforms figures in which Macedonia. show positive A direct consequence trends constant this state increase affairs in citizen is satisfaction. decrease in Namely, effectiveness satisfaction EU conditionality rate in general, court performance more specifically, in June 2010, in just creating six months an after enabling environment OSCE survey where results were recipient published, country was 79,57% would deliver followed deeply by furr rooted increase irreversible in December results ,83%. 20 In a situation where or Western Balkan countries are Limits advancing in current process, EU approach Macedonia remains in EU s waiting room out any prospect starting accession Major reforms negotiations, were conducted fear in an imminent past period loss leading influence exercised a complete through overhaul EU rule judicial law conditionality system in line might very fast European become stards a reality. From this practices. point, even In this sense, stick will rule not function law conditionality properly, aimed at EU bolstering might be JI facing Macedonia anor has problematic served its accession aim. It has country. significantly On influenced or h, domestic new judicial EU approach reforms resulting negotiation in is designed establishment streamline institutions accession capable process, creating guaranteeing a leeway democracy for rule law conditionality be applied more strictly efficiently in order facilitate long-lasting reforms. rule law. However, in line 2013 EU They would also increase effectiveness in exerting Progress Report, concerns are raised about how influence on JI reforms in Macedonia. The new courts currently operate in practice more needs approach provides for a window opportunity be added be done existing ensure EU proper rule law implementation conditionality in terms stards making relating it more JI. functional 21 developing long-term policies aimed at additionally cultivating Suffice principle say, JI. ongoing stalemate in Macedonia's EU accession bid, caused by Greece s non-european Accession attitude, commenced negotiations would show its serve negative as a ol effects push on forward implementation for successful implementation successful EU-related reforms rule in law judiciary. reforms. Only The present by nurturing impasse negatively JI principle affects in real terms tempo rar than reforms formally, in by Macedonia. focusing more A direct on judges consequence mselves, this state altering affairs ir is perception decrease independence, effectiveness EU rule EU conditionality law conditionality in general, would become more more specifically, effective. in By creating contrast, an enabling current approach environment focuses where primarily recipient on institutional country would aspect deliver JI rar deeply than rooted on or concurrently irreversible results. individual aspect. This is visible through key reform priorities delivered Macedonia in area judiciary. In a situation where or Western Balkan countries 23 To adequately apply rule law conditionality, are advancing in process, Macedonia Commission should also take in consideration remains in EU s waiting room out any prospect hisrical legacy subservient manner in which starting accession negotiations, fear an Macedonian judiciary was shaped in past. imminent loss influence exercised through EU Self-censorship or reflexes are still visible, even rule day. law One conditionality very important might very determinant fast become for JI a is reality. judges From perception this point, even ir own stick independence. will not Therefore, function properly, stronger emphasis EU should might be be placed facing on changing anor problematic mind-set accession judicial country. authorities On about ir or role h, in society. new This EU could approach be achieved negotiation exclusively is by designed emphasising streamline individual aspect accession JI. process, creating a leeway for rule law conditionality Furr be applied analysis more strictly JI conditionality efficiently in order reveals a tendency facilitate long-lasting treating reforms. judges as civil servants while continuously insisting on bureaucratic criteria 18 productivity. Vice-President 24 European Commission, EU Justice Commissioner, Viviane, Reding. "The EU Rule Law What Next?" Centre for European Policy Studies. Belgium, Brussels. 4 Sept Web. 14 Aug < The survey has been carried out on basis a methodology developed in framework USAID Project for implementation 677_en.htm>. judicial reforms. See document CEPEJ evaluation report on 19 Macedonia Recommendation 2012 edition CM/Rec(2010)12 < Committee cepej/evaluation/2012/fyrom_en.pdf>. 22 Ministers member states judges: independence, efficiency European Commission. responsibilities THE REPUBLIC OF MACEDONIA 2013 PROGRESS 20 REPORT. Brussels, SWD (2013) 413 Final. p For The example, last satisfaction fill-in all survey vacancies was conducted begin in delayed May initial training 2011, anor Academy one for has Judges not been Public conducted Prosecurs ever (AJPP) in order since. bring OSCE Spillover academic Monir cycle back Mission track; or Skopje, ensure Legal full meritbased recruitment judiciary from AJPP. 24Analysis: Independence Judiciary, December For instance, criteria on number minimum cases that should be resolved European by a Commission. judge on a monthly THE REPUBLIC basis in all OF courts MACEDONIA continuous efforts 2013 PROGRESS reduce REPORT. backlog Brussels, cases SWD(2013) 413 Final. p

6 Notsting importance productivity criteria in assessing work judges, focus on productivity alone obfuscates role given m by Constitution. Increasing efficiency judiciary does not mean enhanced quality judicial decision by default. This is also reflected in 2013 Progress Report which mentions necessary improvements which need be made by authorities ensure that organisation court system career structure does not drive judges wards formalistic decision-making purpose reaching short-term productivity targets. While financial support provided by EU is meant support Union respective cidate countries in transforming ir political priorities in concrete actions, data collected on EU assistance on judicial reforms in Macedonia reveal that assistance provided is not following degree conditionality applied throughout accession process. Between , ficial development assistance provided by EU institutions EU Member States that are part OECD s Development Assistance Committee 25 in secr legal judicial development made up on average 32% funding all international donors in this field % 45% 40% 35% 30% 25% 20% 15% 10% 5% 0% Share EU institutions DAC-EU countries in overall funding legal judical development The data showed an evident downward trend in share EU institutions OECD DAC EU Member States funding, declining from 47% in 2008 only 9% in For period mentioned above, in tal, y have allocated approximately 7.5 million, which is less than sum Macedonian government spent build new Criminal Court in Skopje ( 9.1 million). Conclusion recommendations Taking in account where Macedonia sts in relation EU accession process, its level alignment EU acquis is high, as stated by former European Commissioner for Enlargement Stefan Füle at presentation 2013 Progress Report on Macedonia. The alignment in judicial independence is not an exception as major reforms in recent times led a complete overhaul justice system in line European stards best practices. Thus, EU rule law conditionality aimed at bolstering judicial independence in Macedonia has served its aim. It has significantly influenced domestic judicial reforms resulting in establishment institutions capable guaranteeing democracy rule law. The impasse in Macedonia s EU accession process caused by bilateral dispute imposed by Greece Share EU institutions DAC-EU countries in overall funding legal judical development started have its negative consequences on 50% effectiveness 45% EU rule law conditionality. This situation 40% has directly influenced pace reforms 35% produced a tendency circumventing deeply 30% rooted irreversible reforms. This can be rectified 25% by 20% employing accession negotiations, as a ol for 15% boosting reforms which would substantially increase 10% effectiveness rule law conditionality. 5% 0% The new approach is designed furr facilitate accession process. The judicial independence conditionality applied in case Macedonia should be applicably modified grasp risen opportunity. Accordingly, EU stpoint judicial independence in this phase accession process ought be in direction that judiciary is a coequal branch power, functioning in a democratic system checks balances participating as part a democratically accountable government. The failure do so would lead wards producing short-term effects, instead deeply rooted sustained improvements. 25 Austria, Belgium, Czech Republic, Denmark, Finl, France, Germany, Greece, Irel, Italy, Luxembourg, Nerls, Pol, Portugal, Slovakia, Slovenia, Spain, Sweden United Kingdom. 26 International Development Statistics online database, OECD

7 Zenith Policy Brief The However, intention data revealed following an evident recommendations downward is trend assist in share Commission EU institutions overcoming OECD some DAC EU Member limits States funding, current declining EU approach from 47% in judicial 2008 independence only 9% outlined For in period this mentioned brief. The effectiveness above, in tal, y rule have allocated law conditionality approximately applied in 7.5 accession million, which process is less Macedonia than should sum be strengned Macedonian by government means : spent build new Criminal Court in Skopje ( 9.1 million). Enhancing principle judicial independence by Conclusion focusing on recommendations individual judges ir independent decision-making purp ose changing Taking in ir account mind-set where in this Macedonia regard, sts as well in as ir relation particular EU role accession in society. process, its level Promoting alignment an inclusive EU acquis approach is high, as where stated civil by society former pressional European organisations Commissioner would for be involved Enlargement in moniring Stefan Füle at judicial presentation independence by conducting 2013 Progress regular Report satisfaction Macedonia. surveys The alignment on independence judicial independence courts is not judges an exception as perceived as by major ir reforms users. in recent times led a complete overhaul justice system in line European Establishing stards a best balance practices. between Thus, quantitative EU rule qualitative criteria in appraising law conditionality aimed at bolstering judicial performance judges in order preserve independence in Macedonia has served its aim. It necessary recommendable level quality has significantly influenced domestic judicial judicial decisions citizens satisfaction reforms resulting in establishment work courts. institutions capable guaranteeing democracy Increasing rule law. level financial assistance correspond accession status Macedonia The impasse degree in Macedonia s conditionality EU accession applied process in area caused by rule bilateral law. In dispute particular, imposed available by Greece preaccession started funds have its should negative be channeled consequences for on reformoriented effectiveness projects in EU rule field law conditionality. judiciary, more This situation specifically, has directly for promotion influenced pace judicial independence reforms produced principle. a tendency circumventing deeply rooted irreversible reforms. This can be rectified by employing accession negotiations, as a ol for boosting reforms which would substantially increase effectiveness rule law conditionality. The new approach is designed furr facilitate accession process. The judicial independence conditionality applied in case Macedonia should be applicably modified grasp risen opportunity. Accordingly, EU stpoint judicial independence in this phase accession process ought be in direction that judiciary is a coequal branch power, functioning in a democratic system checks balances participating as part a democratically accountable government. The failure do so would lead wards producing short-term effects, instead deeply rooted sustained improvements. The intention following recommendations is assist Commission in overcoming some limits current EU approach judicial independence outlined in this brief. The effectiveness rule law conditionality applied in accession process Macedonia should be strengned by means : Promotion principle judicial independence by placing emphasis on individual independence a particular judge in order alter ir mind-set regarding JI ir particular role in society. This would have a positive impact on functioning judiciary, would increase its visibility would finally influence public perception confidence in judiciary. Accentuating need for a recipient-oriented approach judicial independence where focus is placed on citizens; in same vein, promoting an inclusive approach where civil society pressional organisations would be involved in moniring judicial independence by conducting regular satisfaction surveys on independence courts judges as perceived by ir users. Establishing a balance between quantitative qualitative criteria in appraising performance judges in order preserve necessary recommendable level quality judicial decisions citizens satisfaction work courts. Increasing level financial assistance correspond accession status Macedonia degree conditionality applied in area rule law. In particular, available preaccession funds should be channeled for reformoriented projects in field judiciary, more specifically, for promotion judicial independence principle. 7

8 About brief About author This policy brief has been prepared in frame This policy TRAIN brief Programme has been 2014 prepared (Think Tanks in Providing frame Research TRAIN Programme Advice through 2014 (Think Interaction Tanks Providing Networking), which Advice is supported through by Interaction German Federal Net- Research working), Foreign Office which (Stability is supported Pact by for South German East Europe) Federal Foreign implemented Office (Stability by Pact German for South Council East on Europe) Foreign Relations implemented (DGAP). by German Council on Foreign Relations (DGAP). Zoran Nechev is an Academic Guest at Center Zoran for International Nechev is an Academic Comparative Guest at Studies, Center ETH for International Zurich (Swiss Federal Comparative Institute Studies, Technology ETH Zurich (Swiss Zurich) Federal a Institute researcher at Technology Association Zurich) for a Development researcher Initiatives Association Zenith in for charge Development Initiatives EU Integration Zenith programme. in charge EU Integration programme. 8