Lawyers criticise Constitutional Court’s notice about civil judge in Natasha Stojanovska case

Lawyers have criticised the Constitutional Court’s recent move to alert the Public Prosecutor’s Office and the Judicial Council about a civil judge who rejected a Constitutional Court decision as a new piece of evidence in proceedings linked to threats against journalist Natasha Stojanovska in the “27 April” case.

Defence lawyer Vladimir Tufegdjic said the Court’s public explanation effectively presumes the judge’s guilt and noted the decision could have been used to call for training rather than criminal procedures.

“With the reasoning of the 'constitutional' decision exactly what is strictly prohibited according to the practice of the ECHR is being done: an atmosphere of guilt and condemnation of a judge is created in advance. At the very least I expected that, because of this case and decision, instead of seeking criminal liability of a judge, the Constitutional Court would point to the need for courts and the Academy for Judges and Public Prosecutors to deliver training and education of judges precisely for the correct application of Constitutional Court decisions and the establishment of a uniform judicial practice in the future. Instead of addressing this inside institutions, the debate is, as usual, shifted to the level of Facebook discussion, which is as bad as the content of the statement and the reasoning of the Constitutional Court decision,” Tufegdjic said.

Legal objections from practitioners

The law firm Davidovic‑Jankovic responded that the Constitutional Court risked overstepping its constitutional remit and exerting pressure on the ordinary judiciary by treating its ruling as a basis for criminal complaints against judges’ legal views rendered in regular proceedings.

“Analysed through a strictly formal‑legal dimension, the Constitutional Court with this move makes a dangerous step towards exceeding its constitutional competences and openly tries to impose itself over the regular judiciary, taking on the role of a supra‑judicial body that issues directives and threatens criminal complaints for legal positions taken in legally prescribed court procedure. In the continental legal system of Macedonia, the judge decides on the basis of the Constitution, the laws and ratified international treaties, not on the basis of judicial precedents or statements of the Constitutional Court. Article 392 of the Law on Civil Procedure contains a decisive, exhaustively listed catalogue of grounds for reopening a finally concluded procedure. In that procedural rule there does not exist, nor has there ever existed, a decision of the Constitutional Court as a ground for reopening a civil dispute,” the firm said.

The firm added that the Basic Civil Court judge acted in line with the letter of procedural law when rejecting a motion to reopen the case, and that the judge’s decision was not final but subject to appeal, so the Court’s intervention before regular remedies are exhausted amounted to undue pressure on appellate review.

“When the judge of the Basic Civil Court Skopje dismissed the proposal for repetition, he acted strictly in accordance with the letter of the procedural law, assessing that a legal interpretation by the Constitutional Court adopted ex post facto cannot be forcefully subsumed under the category of ‘new fact or new evidence’. That is a judicial view, adopted within the framework of independent judicial decision‑making which is decisively protected both by the Constitution and the Law on Courts. Obviously, the basic statutory and constitutional guarantee that a judge cannot be called to criminal or disciplinary responsibility, nor removed for an expressed opinion, adopted legal position or decision in the exercise of judicial function, is being overlooked. This functional immunity is the foundation of judicial independence,” the firm said.

Photo: press material from the event