Application of International Law in Macedonia
University
International law
EU law
Saints Cyril and Methodius—Skopje
Yes
Yes
Kliment Ohridski—Bitola
Yes
No
Goce Delchev—Shtip
Yes
Yes
State University Tetovo
Yes
No
South East European University
Yes
No
First Private European University
Yes
No
FON University
Yes
Yes
American College
Yes
No
However, none of the universities deal with the application of international and EU law. This suggests that law students gain knowledge on international law, but lack the skills for its application.
3.4 Training in International and EU Law for Legal Professionals
An academy was established by the Academy for the Training of Judges and Public Prosecutors Act (OG No. 13/2006). The Academy is the main body in the judicial system that provides continuous education and training for judges, public prosecutors, and judicial and prosecution clerks, as well as the professional development of candidates for judges and public prosecutors. The Academy also contributes to the organisation and implementation of training for educators, as well as for lawyers, public notaries and other legal professionals that apply national law.
The Academy programme for initial training encompassed a total of 660 lessons in 2006–2007, and 659 lessons in 2007–2008. This figure gradually fell to 232 sessions in 2012 (Annual Reports 2006–2007; 2011–2012). The training is delivered by both domestic and foreign trainers in various legal areas. In 2007–2008, of the 659 lessons provided, 6 % were on subjects related to international law, and 5 % focused on EU law. In 2012, of 232 training sessions, almost 2 % were on international law, while interest in EU law increased up to 7 % of all training sessions provided.
However, a more detailed examination of the programme reveals that legal requirements stemming from international law and EU law in particular have been integrated into the training programme. This is especially applicable to new features introduced into the Macedonian legal system as a result of approximation with EU law in areas of material and procedural legislation in basic legal areas (criminal, civil, commercial); the fight against organised crime, corruption and human trafficking; and competition, intellectual property, consumer protection, international bankruptcy, international humanitarian law, etc. In 2012, the Academy also held workshops focusing on: ‘Court Decisions within a Reasonable Period of Time’; ‘Competition Law in the European Union’; ‘Protection of the Environment in the EU’.
The Academy has specifically focused on the European Convention on Human Rights (ECHR) since its establishment and continuously provides training on application of the ECHR by domestic courts as well as applying the case law of the European Court of Human Rights (ECtHR) and other international courts with the aim of correctly applying international standards for a fair trial within a reasonable time (Annual Report 2007). In 2012, the strategy of the Academy turned to also providing workshops and discussions (round table discussions, conferences and seminars), including topics related to the ECHR. A good example is the round table on the topic ‘Court Practice Related to Crimes against Honour and Reputation and a Review of the Practice of the ECtHR in Terms of Applying Article 10 of ECHR’ (Annual Report 2012).
The Academy has contributed to a very important aspect of capacity building in the application of international and EU law since its establishment, which is by providing beginner and advanced level foreign language courses (English being the primary choice, followed by German and French). Proficiency in a foreign language is a precondition for reading decisions of the ECtHR and other international courts and applying them in domestic proceedings.
Lastly, the Academy has dedicated part of its activities to raising awareness of the work of the European Court of Human Rights in areas of Macedonian society such as the media. In 2012, it organised a study trip to the European Court of Human Rights for the highest representatives of judicial institutions in the Republic of Macedonia and also representatives of the print and electronic media in the country to familiarise them with the practice of the court in relation to Articles 8 and 10 of the ECHR. The goal was to inform the media and judiciary of the latest documents of the Council of Europe and to present an overview of the jurisprudence related to the crimes of slander and offense committed through the media. There was also a brief overview of the jurisprudence of the ECtHR through the development of standards concerning the implementation of Article 10 of the ECHR, and the degree of their implementation in national practice in terms of the conduct of judges and journalists with regard to freedom of expression and information (Annual Report 2012).
Awareness-raising activities have been further accelerated in recent years (2010–2013), with the Academy organising a number of public events such as a conference marking International Tolerance Day, as well as series of events promoting ECHR values to contribute to a renewal of the country’s commitment to protection of the fundamental rights and freedoms of citizens. The target audience of these events was judges and public prosecutors, but also representatives of almost all areas of society, including journalists, politicians, academics, civil society and representatives of religious communities.
Capacity building for the application of international law does not encompass only training and awareness-raising, but also providing resources for legal professionals to use when applying international law in legal proceedings. Over the past several years, the Academy has created such resources by publishing the following publications: ‘International Documents on an Independent and Efficient Judiciary: Opinions (1–6) of the Consultative Council of European Judges with the Landmark Documents and ECHR Jurisprudence’ and ‘International Documents on an Independent and Efficient Judiciary: Opinions (7–12) of the Consultative Council of European Judges with the Landmark Documents and ECHR Jurisprudence’ (Annual Report 2012). In the course of 2013, the Academy has identified 20 out of a total of 28 relevant European Court of Human Rights decisions to be made available on the portal for international jurisprudence, which will be an integral part of the website of the Supreme Court of the Republic of Macedonia. In addition, judicial authorities in the Western Balkans recently agreed to create the WB HUDOC database, which will encompass all ECtHR decisions against Western Balkan countries translated into local languages to serve as an important resource for domestic courts when applying the ECHR (interview with Bogdanov 2013). In addition, the Supreme Court of Macedonia took a step forward by adopting a decision on setting up an editorial committee to be the main filter in the selection of national jurisprudence to which the ECHR is applied (interview with Panchevski 2013). This committee includes representatives of all four appellate regions, the Supreme Court and the Academy of Judges and Public Prosecutors.
4 Judicial Application of International and EU Law
Considering that most Macedonian judges have not been educated or trained in international law and that they have a limited knowledge of foreign languages, the level of application of international law by Macedonian courts is very limited. If we were to ask who initiates the issue of application of international law in Macedonia, we would find that it is usually the attorneys of the applicant that initiate the application. There are also a handful of judges that specialise in certain areas of international law, such as the ILO conventions or ECHR, and who use references to international law in their work (interview with Bogdanov 2013). It is rather infrequent for attorneys to initiate the application of the case law of the ECtHR and even less likely for judges to use it as a source of international law and apply it in their judgments.
For the purpose of this paper, we conducted a review of the case law of the basic and appellate courts, as well as the practice of the Constitutional Court. We used the electronic system for publishing court decisions, which is available on the websites of the courts. To detect decisions where the ECHR was applied, we used the key-word discrimination in the search engines of the basic, appellate and constitutional courts. As far as other international legal documents are concerned, identification was carried out using a snowball methodology and face-to-face interviewing in which legal professionals directed us to court decisions that referred to or applied international law. The cases we identified in the course of the research phase have been categorised and analysed to reveal trends in the judicial application of international law. The analysis is presented below and focuses on: (1) the application of international treaties and other legal documents; (2) the application of the case law of the ECtHR.
4.1 Application of International Treaties and Legal Documents
4.1.1 Application of the ECHR
The international legal document most widely applied and referred to by Macedonian courts has been the European Convention for the Protection of Human Rights and Fundamental Freedoms. This has been a result of the capacity-building and awareness-raising activities on the ECHR in combination with the work of the European Court of Justice, whose decisions against Macedonia have been widely reported in the media. From an analysis of the case law, three distinct strategies used by the Macedonian judiciary can be perceived: (1) reference to the ECHR indirectly through mirror provisions in Macedonian laws; (2) reference directly to ECHR provisions and use of the ECHR in the justification part of decisions; (3) application of ECHR provisions directly. Both basic and appellate courts often refer to the Convention, but rarely apply it directly. In most cases, the courts apply mirroring provisions in the Constitution of Macedonia (interview with Medarski 2013). Only one particular case was detected in the research phase. This was Sexual Workers v. the Ministry of Interior (no. 9-P-2605/09), where the Skopje second basic court directly applied Articles 3, 5 and 8(2) of the ECHR in its decision.
The Constitutional Court, on the other hand, leads in the number of cases in which there is a reference to this source of international law. However, in one case it did not consider the ECHR as a sufficient legal basis for its decisions. In the Georgi Pavlov v. the Appellate Court of Shtip case, the protection of rights enshrined in the ECHR was sought. However, the Constitutional Court of Macedonia in its decision ruled that:
although the ECHR is encompassed in the domestic legal order it cannot be considered as a direct and independent legal basis for a court’s decision. The Convention’s provisions can be considered as an additional argument when deciding on the rights and freedoms the Court is entitled to protect under Article 110(3) of the Constitution of Macedonia.