Date of adoption: 07.03.2023
Introduction
Based on Articles 110 and 112 of the Constitution of the Republic of North Macedonia and Article 70 of the Rules of Procedure of the Constitutional Court of the Republic of North Macedonia (“Official Gazette of the Republic of Macedonia” no. 70/1992 and “Official Gazette of the Republic of North Macedonia” number 202/2019, 256/2020 and 65/2021), during the session on 7 March 2023, the Constitutional Court of the Republic of North Macedonia adopted the following
DECISION
Text
1. Article 8 Paragraph 3 in the section “who are elected by the Assembly of the Republic of North Macedonia” of the Law on the Judicial Council of the Republic of North Macedonia (“Official Gazette of the Republic of North Macedonia” number 102/2019) IS REPEALED.
2. This decision shall be published in the “Official Gazette of the Republic of North Macedonia”.
3. Upon the initiative submitted by Pance Dokuzov from Stip, Resolution U. no. 233/2020 from 28 April 2021, the Constitutional Court of the Republic of North Macedonia initiated a constitutional review of the contested section as indicated in Item 1 of this Decision, in view of the fact that before the Court was legitimately founded the query of its compliance with the Constitution.
4. At a session, the Court determined that according to Article 8 Paragraph 1 of the Law on the Judicial Council of the Republic of North Macedonia is chaired by a President.
In Paragraph 2 of the same Article, it is defined that the President of the Council has a deputy who deputies him/her in his/her absence.
In accordance with Paragraph 3, containing the contested section, the President of the Council and his/her deputy are elected from among the members of the Council with the right to vote, which are elected by the Assembly of the Republic of North Macedonia.
According to Paragraph 4, the President of the Council and his/her deputy are elected by the members with the right to vote, with eight votes at least.
Finally, in Paragraph 5 of this Article, it is defined that the term in office of the President of the Council and Deputy–President of the Council is two years, without the right to re-election.
5. In accordance with Article 8 Paragraph 1 Indent 3 and 4 of the Constitution, the rule of law and the division of state powers into legislative, executive and judicial are fundamental values of the constitutional order in the Republic of North Macedonia.
With Amendment XXVIII of the Constitution, which replaces Article 104, the Judicial Council is defined as an independent and autonomous body of the judiciary, which ensures and guarantees the independence and the autonomy of the judiciary, and it is composed of fifteen members. According to this Amendment, the President of the Supreme Court of the Republic of North Macedonia and the Minister of Justice are ex officio members of the Council while eight members of the Council are elected by the judges from among their own ranks. Three of the elected members shall belong to the communities that are not majority in the Republic of North Macedonia, insuring that equitable representation of citizens belonging to all communities shall be observed. Three members of the Council are elected by the Assembly of the Republic of North Macedonia with majority votes of the total number of MPs and with majority votes from the total number of MPs who belong to the communities that are not majority in the Republic of North Macedonia. Two members of the Council are proposed by the President of the Republic of North Macedonia and are elected by the Assembly of the Republic of North Macedonia, and one of them shall belong to the communities that are not the majority in the Republic of North Macedonia. The members of the Council elected by the Assembly of the Republic of North Macedonia, on a proposal of the President of the Republic of North Macedonia shall be from among University law professors, lawyers and other prominent jurists. Finally, the members of the Council are elected for a term of six years, with the right to one re-election.
In addition to the above, according to the Amendment, the criteria and manner of election, as well as the basis and the procedure for termination of the mandate and dismissal of a member of the Council shall be determined by law.
Article 1 of the Law on the Judicial Council of the Republic of North Macedonia defines the subject of regulation of this law, i.e. it regulates the procedure for selection of the Judicial Council of the Republic of North Macedonia, the manner of exercising its offices, the selection, the termination and the dismissal of a judge and a lay judge, the procedure for establishment of responsibility of a judge of president of a court establishment of unprofessional and bad faith in exercising the judicial office, the monitoring and assessment of the work of the judges, the manner of working and deciding, and other issues connected with the operation of the Judicial Council of the Republic of North Macedonia.
Regarding the contested section, the Court decided that it violates Article 8 Paragraph 1 Indent 3 of the Constitution, according to which the rule of law is a fundamental value of the constitutional order of the Republic of North Macedonia. Specifically, the election of the president of the Council and his/her deputy is limited exclusively to the members of the Council elected by the Assembly, while other members with the right to vote with a legal resolution do not have the right to be elected for the positions – president and his/her deputy of the Council, which represents a different treatment of members in the Council with the right to vote, without the existence of a constitutional ground.
Apart from the rule of law, it has also been violated the fundamental value of the constitutional order – the division of state powers into legislative, executive and judicial.
Specifically, with the disputed section of Paragraph 3 of Article 8 of the Law on the Judicial Council of the Republic of North Macedonia, the election of members of the ranks of judges as representatives of judicial power is actually impossible. With this kind of a resolution, the legislative power limits the judicial power through its representatives, on equal ground with the other members of the Council elected by the Assembly, to be able to participate in the management of this body, even though according to Amendment XXVIII of the Constitution, these elected members are constitutionally and legally equal.
Due to the aforementioned, the Court determined that Article 8 Paragraph 3 in the section “who are elected by the Assembly of the Republic of North Macedonia” of the Law on the Judicial Council of the Republic of North Macedonia is not in accordance with Article 8 Paragraph 1 Intents 3 and 4 and Amendment XXVIII of the Constitution.
6. Based on what was presented, the Court decided as in Item 1 of the Decision.
7. This decision was adopted by the Court composed of the President of the Court, Dobrila Kacarska, and judges: Naser Ajdari, Osman Kadriu LLD, Darko Kostadinovski LLD and Fatmir Skender LLM.
U. no. 233/2020
03.07.2023
Skopje
PRESIDENT
of the Constitutional Court of the Republic of North Macedonia,
Dobrila Kacarska
Judge – Rapporteur
Osman Kadriu LLD