Мојаноски, Цане Т. and Ортаковски, Владимир and Миленковска, Марија and Крстевска, Катерина and Иванов, Александар (2017) ИМПЛЕМЕНТИРАЊЕ НА ПРАКТИКАТА НА ЕВРОПСКИОТ СУД ЗА ЧОВЕКОВИ ПРАВА ВО РЕПУБЛИКА МАКЕДОНИЈА: СТРАЗБУР ДОМА ИЛИ МАКЕДОНИЈА ПРЕД СТРАЗБУР. Project Report. Факултет за Безбедност - Скопје, Скопје.
Full text not available from this repository.Abstract
Described in the literature as ―the most advanced and effective among the world’s systems of human рights―(Goldhaber; 2007, 2), the European Court of
Human Rights is at the very center of any debate about international protection of human rights. In this context, the research raises a debate about the role of the Court
in the Republic of Macedonia and contributes to the development of human rights theory, as well as to the reinforcement of the mechanism for the implementation of
the judgments of the ECtHR that has been established in the Republic of Macedonia. The research aims to describe and explain the impact of the ECtHR on human rights protection in the Republic of Macedonia. A number of research
studies that have been conducted in Europe have revealed that the case law of the ECtHR has impact on citizens’ rights and freedoms (for instance, Arold, 2007; Donald, Gordon & Leach, 2012; Gusy & Müller, 2008; Anagnostou, 2009). Such developments raise a dilemma regarding the impact of the ECtHR on the legal order of the Republic of Macedonia as a post-communist country and a member of the
Council of Europe. Has its case law imposed changes of domestic legislation and practices in Macedonia? Does the ECtHR have impact on the human rights protection in states marked in the theory as ―new democracies‖ (Greer; 2006, 23)
that is similar to the impact it has in the countries of Western Europe? If we agree with Sadurski that the ―accession to the ECHR and incorporation of its values and
standards into the domestic life of the countries of Eastern and Central Europe will not be perceived, as it was in Western Europe, as a mere reflection of pre-existing
national values but rather as a challenge which consciously has to be met with energy and vigour‖ (Sadurski, 2009, 179) a logical question emerges not whether but how the ECtHR impacts on the policy for human rights protection in
Macedonia. Such starting positions seem logical if one bears in mind the Constitution of the Republic of Macedonia which stipulates that international agreements, including the ECHR, ratified in accordance with the Constitution, are
part of the internal legal order. There is an ongoing vigorous debate in the literature about measuring the
efficiency of the international systems for human rights protection, including the system that has been established by the European Convention on Human Rights (ECHR). Some researchers use quantitative and qualitative indicators to assess the impact of the international human rights law while others focus on its empirical effects on state practice. (Alston & Goodman; 2013, 1225-1274. However, all
approaches have met with criticism. Bearing this in mind, the judgments of the ECtHR are the starting point for
the analysis of the impact of the ECHR in this research. As Stone Sweet & Keller (2008, 30) note ―the extent of the Court’s influence can be assessed most directly following a finding of violation on the part of the Court‖. According to them such rulings ―challenge national officials to take decisions that will render national law compatible with the Convention‖ (Sweet and Keller; 2008, 30). Therefore, the
VI research analyzes the decisions of ECtHR and the process of their implementation in practice by the Macedonian authorities. Such starting position has seemed logical, in particular, if one bears in mind the fact that the existing literature describes the ECtHR judgments as ―equally effective as those by any domestic court― (Arold; 2007, 32).
The ECtHR has been set up ―to ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols‖ (Article 19, ECHR). It has jurisdiction to interpret and apply the ECHR by examining applications lodged by any person, non governmental organisation or group of individuals claiming to be the victim of a violation of the rights protected by the ECHR by the state party or by examining applications lodged by any state party to the Convention against other state party claiming that the latter has violated certain provision of the ECHR. Article 46 of the ECHR stipulates that ―the High Contracting States undertake to abide by the final judgment of the Court in any case to which they are parties.‖ The state’s obligation to implement the judgment finding a iiolation of the ECHR also includes an obligation to prevent similar violations in the future. Namely, a judgment of the ECtHR in which the ECHR finds a violation of the ECHR imposes on the respondent state an obligation to: 1) pay any sums awarded by the Court by way of just satisfaction; 2) adopt, where appropriate, individual measures to put an end to the violation found by the Court and to redress, as far as possible, its effects; 3) adopt, where appropriate, the general measures needed to put an end to similar violations or prevent them (Recommendation CM/Rec (2008)2). So, one may observe that when the ECtHR finds a violation of rights and freedoms protected by the ECHR it does not imply the ending of the process, rather its directing. As Tulkens points out ―[a] judgment of the European Court of Human Rights is not an end by itself, but a promise of future change, the starting point of a process which should enable rights and freedoms to be made effective‖ (Abdelgawad; 2008, 5).
With this in mind, the practical effects of the ECtHR judgements i.e. the effects their implementation has on the human rights protection in Macedonia (the domestic legislation, the case law of national courts etc.) have become the subject matter of this research. The first question that needs to be addressed here concerns
the concept of ―implementation of the case law of the ECtHR‖: whether or not the implementation of the ECtHR case law is reduced to the execution only of the judgments involving the state as a party. The Law on Execution of the Decisions of the ECtHR defines the concept of ―execution of the ECtHR decisions‖ as payment of the sum awarded by the Court to the applicant as just satisfaction and adoption
and taking individual and general measures, which may be required to remedy the violation and its consequences as well as the reasons for launching the application
and prevention of the same or similar violations (Article 2). However, one should take into account the general obligation of the state under the ECHR (Article 1) as
well as the res inerpretata effect of the judgments against other states. Therefore, for the purpose of the research the concept of ―implementation of the case law (decisions) of the ECtHR‖ is broader than the concept of ―execution of the decisions VII of the ECtHR‖ against Macedonia, thus coming closer to the concept of ―compliance with‖. The complexity of the subject matter and the objectives of the research
necessarily impose the need for a pluralistic methodological approach. Both qualitative and quantitative research design has been employed. The research uses the following general scientific methods: the normative method, the dogmatic
method, the analytical method, the inductive-deductive method, the axiomatic method and the hypothetical-inductive method, as well as the standard research procedures, such as: interview (standardized, especially the asynchronous
interview) qualitative analysis of the contents (content analisys), conversational and discourse analysis as procedures which provide the preconditions for in-depth
findings. The research analyzes relevant literature and documents, in particular the judgments of the ECtHR.
The research focuses on the analysis of the judgments of the ECtHR against the Republic of Macedonia, reached in the period 2001-2013 (available at the web site of the Ministry of Justice of the Republic of Macedonia.) A particular
questionnaire has been designed for the purpose of the research. It has been designed on the basis of the content analysis of the judgements and it contains the common elements found in each judgement, which could be quantified and presented as a group picture. It contains 43 questions, having one or multiple answers. The questions are close-ended, answered by ―circling‖ the appropriate
answer. There are also some open-ended questions. According to its content the questionnaire is composed of two parts: (1) the sociodemographic characteristics of the applicant, and (2) the characteristics of the judgement related
to human rights violations, the status of the applicant and the penalty. For the purposes of the research the decisions of the Constitutional Court of the Republic of Macedonia have also been analyzed (in order to obtain findings as
to whether the Court incorporates the practice of the ECHR in its decisions). All decisions of the Constitutional Court in the period 1998 -2014 accessible at the web site of the Court have been analyzed through content analysis and a database in Microsoft Excel has been created. Descriptive statistical indicators have been calculated using the software package SPSS 19. Within the research, a structured interview has been conducted. It is a research procedure in which the researcher uses the instrument basis for conversation. It has the form of a formal questionnaire and during the interview all matters concerning the instrument are adressed (Мојаноски Ц. Т., 2015, стр.445).
In the data collection procedure asynchronous interview (email interview) has been used. This type of interview is carried out via email and takes place in non-real
time, thus allowing the researchers and the respondents to choose the time that suits them best to participate in the research. The basis for the conversation (the interview) is composed of two parts. The first part refers to the structure of the sample (gender, age, nationality and education level), while the second part contains 11 questions related to the main thesis of the research. Part of the questions that form the basis for the conversation have been taken from the instrument (the interview) in the research report of the Equality and VIII Human Rights in the United Kingdom ―The UK and the European Court of Human
Rights‖ (―The UK and the European Court of Human Rights‖, Alice Donald, Jane Gordon and Philip Leach, ―Human Rights and Social Justice Research Institute‖ London: Metropolitan University, 2012). Based on the designed grounds for the interview the research team had planned to conduct interviews with a certain number of persons, experts from the legislative, the executive and the judicial powers, as well as with representatives from the NGO sector and the academic community. The request of the research team was positively answered by the Constitutional Court (1 respondent), the Court of Appeals in Skopje (6 respondents), the Academy for Judges and Public Prosecutors (1 respondent), а representative of the NGO and also a judge working abroad (1 respondent), the State Attorney’s Office of the Republic of Macedonia (3 respondents) and the Bureau for Representation of the Republic of Macedonia before the European Court of Human Rights (1 respondent).
The analysis of the data collected during the research has provided significant conclusions that can be summarized as follows: I. The research has revealed that the state has established the national mechanism for execution of the judgments. However, there are different opinions with regard to its efficiency. In this context, several dilemmas can be pointed out that should stir the interest of both researchers and decision makers: 1) What is the de facto role of the Parliament in this process? Should one consider the possibilities of strengthening its role? 2) Should the body that represents the Republic of Macedonia in front of the ECtHR have responsibility in terms of the implementation of the judgments? 3) What is the real role of some other
mechanisms for coordination (between the domestic law and ECHR) established in this regard (for instance, the Ombudsman)? 4) Do the authorities have the will to
implement politically unpopular judgements? II. The analysis of the judgments of the ECtHR, including those against the
Republic of Macedonia, provided certain observations in relation to the jurisdiction of the ECtHR, as well as the scope and content of the rights and freedoms protected
by the ECHR. Such observations, systematized in separate annexes (at the end of the research report), represent a significant deliverable of the research, in particular
if one bears in mind the following: 1) According to some of the respondents (participants in the interview conducted within the research) the number of rejected applications against Macedonia by the ECtHR is due to the lack of knowledge of the practice of the ECtHR; and 2) Vast majority of the respondents included in the research believe that the public is not sufficiently familiar with the practice of the
ECHR and that there has been insufficient public debate on this issue. III. The analysis of the judgments against the Republic of Macedonia has revealed that in the vast majority of cases the ECtHR has found a violation of the ECHR by the state. All applications submitted against the country are individual applications, and a significant part are submitted by natural persons. Also, a vast majority of them are submitted by Macedonian citizens, but there are several
applications that are submitted by foreign citizens. In most cases the applicants referred to violation of more than one article of the Convention, and the ECtHR in extremely large number of them found a violation of Article 6 of the ECHR by the IX Republic of Macedonia. Hence, it can be concluded that the state has shown major weaknesses in the observance and protection of the right for a fair trial, particularly
in terms of a ―trial within a reasonable time‖. Furthermore, in several judgments the ECtHR found a violation of Article 3, Article 5 or Article 1 of the Protocol 1 to the ECHR. There are also judgments in which the Court found a violation of Article 13, as well as Article 2 (one judgement), Article 8 (one judgement) and Article 11 of
the ECHR (one judgement). The judgements in which the ECtHR found a violation of a certain right protected by the ECHR also detected certain weaknesses in the system for protection of rights established at national level. In this respect it is interesting to note that most of the respondents (the expert public) included in the interview
within the research point out that the ECHR judgments in relation to Article 3 of the ECHR, more specifically the judgment in the Jašar case or the group of cases Jašar
and others are judgements that indicate extremely serious deficiencies in the protection of human rights in the country. IV. Although it cannot be said that the research found causal relationship in that the sentences have impact on the national legislation, policy and practices, and
consequently on the protection of human rights at national level, it still provides solid arguments for such assertion. This observation in a way corresponds with the views of the experts (most of the respondents included in the interview) that the ECHR judgments have impact on the internal legal system. In this context, it should be emphasized that as a result of the judgments against the Republic of Macedonia,
significant changes have been made in the legal acts that regulate the civil, the criminal and the executive proceedings, and a national legal remedy has been
introduced for the protection of the right to trial within a reasonable time. Defamation has also been decriminalized (a Law on Civil Liability for Defamation and Insult has been enacted) and a new Law on Associations and Foundations has
been enacted. V. When it comes to the implementation of the practice of the ECHR by the domestic courts we can conclude that it is far from satisfactory. The fact that there
are 24 decisions of the Constitutional Court of the Republic of Macedonia in which it explicitly invokes the ECHR, and only 4 decisions in which it explicitly refers to
the practice of the ECHR (a specific case or cases) of the total of 794 decisions (available at the website of the Court) for the period 1998 -2014 speaks for itself.
Indeed, the fact that the Constitutional Court changes in the course of time its approach to the ECHR should be welcomed as a development in the right direction.
It has begun to rely on the general principles enshrined in the ECHR and interpreted in the practice of the ECtHR in its interpretation of the constitutional provisions, and in some decisions the Constitutional court even explicitly invokes the practice of the ECHR (for decisions against other states) and to align with the obligation to take into consideration ECHR as it is interpreted by the ECtHR (principle res interpretata). This is a significant change compared to its starting position (which
has been abandoned) to use the ECHR only as a supplementary argument in the interpretation of the Constitution. How (in)consistent it is with that position is an entirely different issue. The research did not go into further analyses of the decisions in which the Constitutional Court invokes or does not invoke the ECHR X or the practice of the Court. Therefore, we cannot give further comments. However,
the data presented above are sufficient to raise the dilemma as to whether ―the openness‖ of the Macedonian national legal system towards the international law (in accordance with Article 118 of the Constitution) is essential or just formal at a normative level. The following speaks in support of this dilemma: 1) the significant number of requests for protection of the right to trial within a reasonable time
before the Supreme Court of the Republic of Macedonia; 2) the protraction of the procedure for protection of the right to trial within a reasonable time in some of the cases (a problem recognized by the Supreme Court in its reports as well); and 3) the indications (not conclusions) as to how the Constitutional Court uses the test of proportionality when deciding on human rights (which by itself as an issue poses a serious challenge for future research).
The research results can also serve as a solid basis for making some specific recommendations to decision makers in the country. They can be grouped into several categories:
I. One could consider the possibilities of strengthening the control mechanism over the work of the police, as well as strengthening the mechanism for control and monitoring of the places where the persons are deprived of freedom.
II. Further analyses and research are needed in several areas: 1) with respect to the harmonization of national legislation regarding the use of firearms with the
requirements from Article 2 of the ECHR; 2) with regard to imposing detention as a measure; 3) with regard to the suspicions related to the impartiality and
independence of the judges, and with regard to the deficiencies in the explanations of the judgments; 4) with regard to the protraction of the proceedings (in some
cases) to protect the right to trial within a reasonable time before the Supreme Court; and 5) with regard to the effectiveness of the implementation of the decisions
of the ECtHR established at national level (in that respect we should see what can be learned and applied (taking into consideration the specificities of the Macedonian legal system) from the experience of the Netherlands and the UK.)
III. One could consider the possibilities of amending Article 421 of the Criminal Procedure Code, taking into account the fact that according to the ECtHR this provision contributes to procedural inequality; IV. One could consider the possibilities of more accurately formulating the
provisions from the Law on Associations and Foundations (Official. Gazette no. 52/2010, 135/2011). These provisions govern the grounds for prohibiting an association and foundation. V. A full and effective investigation into the El-Masri case should be conducted and a public apology should be issued. Also, additional measures should
be taken in order to execute the judgment in the Radko case (a new application has been launched before the ECtHR).
VI. Additional trainings on the practice of the ECHR should be organized both for the judges and for the personnel in other state institutions. VII. It is necessary to encourage the subjects of the civil society (associations of citizens, universities, religious organizations, entrepreneurs and citizens) to intensify their activities pertaining to an organized, systematic and in-depth analysis XI of the experiences from the decisions of the ECHR, which could be followed by a public debate.
| Item Type: | Monograph (Project Report) |
|---|---|
| Subjects: | Scientific Fields (Frascati) > Social Sciences > Law |
| Divisions: | Faculty of Security |
| Depositing User: | Ms. Olivera Trajanova |
| Date Deposited: | 10 Jul 2023 19:52 |
| Last Modified: | 10 Jul 2023 19:52 |
| URI: | https://eprints.uklo.edu.mk/id/eprint/8612 |
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