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Sixth session of Working group 3 – Judiciary and Fundamental Rights (Chapter 23) “Settlement as a measure for more efficient judiciary”

The sixth session of  NCEU-MK Working Group 3 on Justice and Fundamental Rights (Chapter 23) took place on 11.09.2019 in the Club of Parliamentarians in Skopje. The topic of the discussion was: “Settlement as a measure for a more efficient judiciary”.

This session was attended by more than 50 representatives of all stakeholders, representatives of the academic community, judges, public prosecutors, NGOs and an expert from the Slovak Republic.

The session was opened by the moderator Muhamed Halili, who emphasized the importance of the topic and invited the experts to start their speeches.

Prof. Kalajdziev emphasized that our legal tradition, as well as many other continental traditions, usually is resistant to the elements of consensus in establishing criminal responsibility. The inclination is that the court is the one responsible for determining the sentence. Kalajdziev raised the dilemma of whether our prosecution is at a satisfactory level, where we can trust him to complete the cases in relative secrecy. Speaking about the usage of the settlement in our country, he pointed out that evidence is actually required to establish the length of the sentence, not to prove guilt.

According to prof. Misoski, the idea of ​​introducing the settlement as a measure is that simpler procedures can be resolved in a simplified and quicker way. In our criminal law, the settlement can be used with no limitation on the length of the sentence. Misoski emphasized that the defendant needs to know all the legal consequences of a guilty plea such as that in these cases there is no possibility of appeal. We have adopted the model from the USA, with the concept of non-participation of the court in the process of settlement. The role of the judge is to assess whether the settlement was made voluntarily, knowingly and not under pressure and threats.

Judge Olja Ristova said that when it comes to judiciary reform, the goal is to achieve an independent, expert and efficient judiciary. It is precisely the efficiency, the speedy resolution of cases and the speedy access to justice for the citizens, which is crucial for restoring confidence in the court. She pointed out that when the law was adopted, the intention was by settlement to resolve up to 80% of the cases at this stage of the proceedings. According to data for 2017 and 2018, the number of proceedings resolved by settlement was less than 50%, but all of them were resolved by accepting the draft settlement by the judges. Speaking from experience, Ristova mentioned a few reasons why the settlement is not often used from the perspective of the lawyers and the prosecutors.

Slovak expert Tomasz Stremy emphasized that the be pros and cons of restorative justice – saving time and money. In Slovakia the number of prisoners and relatively high compared to some European countries. They have calculated how much a prisoner costs the state, so Stremi proposes using alternative restorative justice measures such as house arrest to save money.

After the break, moderator Frosina Taseva invited the experts to take their part in the discussion.

Lawyer Toni Mekinovski says that in our country, according to the practice, the settlement is a good thing. He followed the statement by the Slovak expert Stremy, that it is necessary to know how much a prisoner costs the country. According to Mekinovski, the settlement is problematic because of some procedural elements and more importantly, because of the prominent role of the prosecution and the perception that it lacks independence. He stressed that the concept of an agreement needs to be analytically approached and further elaborated.