Margarita Tsatsa – Nikolovska: Discontent in Macedonian Judiciary is Permanent

Margarita Tsatsa - Nikolovska

Outspoken and very experienced, after becoming a Supreme Court judge in her native Macedonia, Tsatsa-Nikolovska was appointed as a judge to the European Court for Human Rights in 1998, where she stayed for ten years.
 
Upon her return to Macedonia she was never given the opportunity to pass on her international experience to the judiciary of her homeland. The Judicial Council, a body that elects judges, on several occasions failed to re-elect her as Supreme Court Judge.

In 2011, she was appointed as one of the three international judges in the Bosnian Constitutional Court, an office that she holds to this day.

However, she found a way to express her voice in Macedonia through the Human Rights Institute, an NGO which she leads.

Q: The Macedonian judiciary seems to be in a state of permanent reform. Yet, the European Commission keeps pinpointing political influence and inefficiency as its major flaws. What is your assessment?

Not only that we are not making progress but that in some cases we are regressing.  There is a growing notion in the public and among professionals that the ruling political elite interferes in the election of judges and prosecutors.

In many cases there is no explanation why certain people, who do not meet requirements, are appointed and why, on the other hand, some people who do meet them are rejected.

There are facts that support the European Commission’s assessment of  the Macedonian judiciary. For one, there is public opinion. Each opinion poll, no matter who conducts it, shows very low confidence in the independence of the judiciary. The OSCE opinion poll, conducted amongst the judges some years ago, showed the same result. The then justice minister tried to minimize this but the opinion cannot be hidden. The discontent is permanent.

Lustration process

Q: Macedonia launched a lustration process as a way to deal with the injustices done from the past communist regime and afterwards. It soon sparked a fear that it is being misused for political discrimination of opponents. Do you think the process has been carried out well?

Our lustration process started very late. Other former communist countries did it in the 1990s, soon after the introduction of pluralism.
 
The process Macedonia turned into something that nobody wanted. Both the law and its implementation are flawed.

I do not think that the state office tasked to carry out the lustration process is doing a professional job in presenting the facts. They are being presented very lightly, without clarity as to whether some things are indeed determined facts or just the conclusions of those who read the documents. There is no space left for further elaboration.
 
The law allows different interpretations, however I think it is being misused, to the extent that the original purpose of the law, to allow settlement, is being missed out.

The time span of the lustration law - it applicable until 2019 - is also problematic.

Q: The Constitutional Court last month curbed the time span and the wide range of professions being included in the lustration law. The ruling centre-right VMRO DPMNE party blamed former informants for influencing the Court’s decision to save themselves. Is the Court’s ruling respected?

There is one basic rule that says that court decisions should be implemented. Instead, a number of the Constitutional Court decisions were ignored, not to mention that some government officials and parliamentarians disregarded and discredited the rulings.
 
There should be comments on court’s decisions, especially professional comments that can help in many ways. But in our country these comments are politically driven.

Amnesty for war crimes
 
Q: Macedonia last year scrapped four war crimes cases that were previously returned from the Hague Tribunal involving alleged crimes committed by former Albanian insurgents, some of them now members of parliament, during an uprising in early 2001. After the parliament voted for an amnesty for these cases the court and prosecution gave up further processing. Could Macedonia face problems in the future because war crimes cases are subject to the international human rights conventions?

The issue of obtaining legal redress for the victims is pretty much closed. The amnesty is in force and the court cases are stopped. Actually, only one, concerning the alleged torture of construction workers by National Liberation Army members, entered trial. So, the alleged perpetrators were amnestied at the very start of the legal procedure.
 
Theoretically,  victims can demand compensation on the basis of some obligations that the state took and on the basis of the state’s intervention in their rights.
 
The European Convention on Human Rights, Article 7, Paragraph 2 speaks about a possibility that a state did not consider some acts as misdemeanors. It states that people will be held accountable for any act, which at the time when it was committed, was criminal according to the general principles of law recognized by civilized nations.

It means that someone could interpret that Macedonia , with the amnesty, in fact abolished these misdemeanors, and that is against the European Convention.

Q:  What is the likelihood of that happening?
 
The processing of these case files has stopped so legally we cannot even talk about determined criminal acts.

If it is found that the state intervened in victims’ rights, they should first exhaust all the legal remedies available in the home country before going to the European Court in Strasbourg. But time is running out.

One should be very careful in such cases to determine whether it was state intervention or the lack of it that caused a violation of someone’s rights, and at the end, what will be put before the European Court for Human Rights as a demand.

Detention
 
Q: Why are Macedonian judges so keen on prescribing detention, and why in some cases does detention last for year or more?

Detention in Macedonia is not used the way it should be, according to the law.  It is a final measure, but in Macedonia detention is used as the primary measure. A person is first put in detention, without prior measures taken by the police investigators and the prosecution.
 
The European Court of Human Rights has identified this as a problem on several occasions, saying that Macedonia failed to apply the principles of individualization.
 
Often there are no explanations for the prescription of this measure. The public and the detainees themselves do not know why they are kept in detention because this measure in many cases is collective. There are no arguments, or if there are, they are generalised, and they do not explain the reasons for each individual case.