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Separate but not Independent: The (In)Compatibility of the Judicial Culture with Judicial Self-Governance in North Macedonia

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Analyzing the case of North Macedonia, a country which was the first in the region to align its constitutional and legal framework with the European standards and requirements, this paper covers the second dimension of the judicial culture, namely its (in)compatibility with judicial self-governance. Basing the argumentation on the main features of the judicial culture in North Macedonia as detected in the previous round of research, this paper analyzes how wide is currently the gap between the formal rules and the institutional structure, as perceived through the establishment and functioning of the Judicial Council of North Macedonia (JC) as an essential part of the so-called European model of judicial independence, and the informal practices and perceptions within the judicial culture.

It will be argued, on the one hand, that the malign political influence in the judicial governance still persists, it deteriorates the already low level of trust in the overall judiciary, and it negatively affects the meritocracy in the judiciary generally discouraging and demotivating many judges. On the other hand, resulting from this, there is an existing situation in which there is a widespread fear and distrust among judges in the JC because it is perceived as safeguarding the political interests in the judiciary instead of judicial independence. This perception coupled with the low level of awareness of judicial independence and existing clientelism leads to a general apathy and passivity in the judiciary making it even more vulnerable to different forms of external and internal threats to its independence. In a nutshell, under the circumstance of the existing judicial culture in North Macedonia, judicial autonomy did not translate into judicial independence since it is not accompanied by pertinent changes and transformation of the judicial culture. Thus, the introduction of judicial self-governance has led to a situation under which the judiciary is being separated but not independent from the other branches of power resulting in a lack of genuine judicial ownership over the process of judicial governance.

The argument in this paper will be developed in three subsequent sections combining a theoretical overview, comparative analysis with some of the Central and Eastern European countries (CEEC) sharing a similar legacy of judicial culture, qualitative research through elite semi-structured interviews and quantitative data. The first section will discuss the EU’s approach towards judicial independence as part of the enlargement policy and detect the main shortcomings. The second section will explain the current state of the constitutional and legal framework in North Macedonia concerning judicial self-governance. The third section will analyze the gap between the formal rules and informal practices when it comes to the JC by focusing on two main aspects of this institutions. First, the constitutional mandate and status of the JC will be analyzed. Second, the election and composition of the JC will be in the focus. The paper will end with a summary of the main findings as well as recommendations for addressing and transforming judicial culture in aligning to the requirements of a genuine judicial self-governance.

Separate but not Independent: The (In)Compatibility of the Judicial Culture with Judicial Self-Governance in North Macedonia

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