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  Issue 52

   

Indecent proposal to the legal system

How to put an end to the reform illusionism?

Initiating reforms in the legal system, that would not be ordinary “cosmetics”, but reforms that would change it, root and branch, are basic objectives of the project “Indecent proposal to the legal system – support of a discussion process for legal system’s reforms”. The project was completed a few months ago and its finish can be described as decent, to the “indecent proposal to the legal system”. This project, that lasted from May 2004 to April 2005, was financed by the Open Society Institute of Macedonia Foundation and by the monitoring OSCE mission in Skopje.

“Basic objectives of the project were to examine experts and politicians’ attitudes about legal system’s reforms, to examine and define the range of possible strategies, dynamics and fields where changes could be focused, as well as to examine political and legal instances’ honesty about reforms”, says Aleksandar Cvetkovski, president of the Civil Tolerance and Freedom Association – CTFA, that was a project carrier.

There is a general opinion of domestic and political subjects, international community and citizens, that the legal system in Macedonia needs urgent reforms. Independent and efficient legal system is one of the crucial conditions for Macedonia’s faster integration into the European Union and NATO. The CTFA team, that is a project carrier, thinks that judiciary is inefficient, corrupted, slow and incompetent. “We do not have to prove such claims, even if it is not so, the fact itself that in the legal system it has not been intervened since Macedonia’s independence, leads us to an alarming situation”.

The question that imposes by itself is the following: “How not to remain on a level of just “technical” reforms, but to come to changes that will change our legal system root and branch, so that it could start working on the principles of capitalism and democracy”.

“What is worrying is that Macedonia in spite of the so-called reform illusionism, in spite of forming a few specialized bodies and passing different laws, that should actually present improvement of the legal frame for an efficient national legal system in the real sense of the word, we remain at the beginning position and somehow, I would say, we not only stagnate, but the criminal size and dynamics and inefficiency of the legal system are increasing”, stated professor d-r Nikola Tupanchevski from the Law Faculty at the panel held during the experts’ workshop “National reform of the legal system”.

And again there is the question, which was one of the project’s basic objectives: “How prepared for reforms are the political and legal instances?

“In order to get an answer to this question, during the project we carried out an extensive poll with all legal, parliamentary and governmental instances, as well as interviews with experts from the field of law. A few workshops were held, the web-site was promoted and the book “National reforms in the legal system” was published”, explains Aleksandar Cvetkovski.

Cvetkovski points out that the polls carried out during the project showed that direct target groups are not very interested in the legal system’s reforms, that people are not well informed (more than 50% of lawyers get information about events and reforms in the legal system by the media). Data show partial admitting their own guilt about the legal system’s condition, with highly emphasizing legal bases (Law on courts from 1996) about negative conditions in the legal system, as well as executive power’s interference in the work of courts.

The data according to which in Macedonian courts in 1997 there were 99.946 unfinished cases, and in 2003 that number reached 210.588, show that courts of law gradually more and more “suffocate themselves” in unfinished cases. The analysis of conditions carried out by international and domestic experts shows that such condition is due to the excessive control of judges in lawsuits, limited authorities of officials in courts of law, in the court submission, of the possibility for many objections and interruptions by the defaulter and its favored position, insufficient technical equipment and material and personnel team of the executive departments in courts of law. In accordance with the legal system’s reforms, the Law on executive procedure from 1997 has been changed with the Law on executing and security, whose application should increase efficiency in reaching verdicts.

“One thing has to be clear. Without the new law on courts of law and its application, that would regulate overall operations of courts of law, other regulations are practically meaningless, since they cannot be implemented without changes in the basic law – Law on Courts”, points out Cvetkovski.

It is clear that when we talk about legal system’s reforms, above all we think how to get to the things which mean independent legal system, and then another dilemma imposes: How prepared is our legal system, with such cadre, with such potentials, to be independent?

“We should all realize that there is no democracy without independent legal system”. For the organization, the legal system has authority. Authority has three elements: power, supremacy and material power. What does the legal system have that other powers do not have? Vice versa, all the others have and the legal system as an authority does not have any of these categories. It does not have money, material position, power, it does not have the power police have. The legal system needs power in the courtroom, not to apply it out of it. If we do not understand this, there is no independent legal system”, said professor d-r Ljupcho Arnaudovski at the workshop “National reform of the legal system”.

“Three types of independence of the legal system are constantly pointed out. The first one is individual, the one that the judge should have. The second one is independence that the judge should have in relation with the court and his colleagues, and the third and the most important one is independence in terms of other authorities”, explained Arnaudovski.

 

How to start with real reforms in the legal system?

 

Defeating is the fact that there is no serious initiative where needs for some changes of the employed in the legal system would be described by judges themselves. Does it mean that the circle of abuse and corruption in the legal system is on such a high level, that it has run over judges’ professional virtue and dignity of their profession?

“No, we do not believe in that, we think that judges’ inertia is just a part of the general inertia in the society and ignorance of the power of the public word and organized action”, points out Aleksandar Cvetkovski. “That fear will disappear when things start going on. In our opinion, if someone starts a campaign, whose ultimate objective is legal system’s reforms, judges will get involved in it and reforms will happen”, adds Cvetkovski. The project is completed and asked about the results, Cvetkovski points out that the project concluded that there is a “reform model”, the model will be one of the opportunities. “It will depend on the relation of “pro” and “con” powers for politics’ participation in selection and choice of judges”.

As one of the project’s gains the CTFA team points out the fact that now legal instances are much more informed about the reform processes and the number of those involved in reforms has increased. “Indecent proposal to the legal system” has contributed to speak up for some issues that have so far been considered “internal affairs” of the legal system and politics, it has caused a discussion process or at least it has enriched the one happening simultaneously with the project.

“We are glad that the project has contributed a lot of qualified opinions to be heard and many issues to be opened. The project has shown that the civil sector has to be present in the complex reform processes that cannot be controlled any other way, except by direct involvement and advocacy of citizens’ interests”, pointed out  Aleksandar Cvetkovski in the end.

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